Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano

The applicant, MV, is an Argentinean national who was born in 1973 and lives in Stanmore. The President granted the applicant's request for her identity not to be disclosed to the public (Rule 47 § 3). She is represented before the Court by Ms C. Ferguson of Liberty, a nonGovernmental organisation based in London.

The United Kingdom Government (“the Government”) are represented by their Agent, Ms Y. Ahmed of the Foreign and Commonwealth Office.

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

The applicant was born in Argentina in 1973. She was the eldest of four children: two sisters (VV and FV) and one brother (LV). The applicant's parents separated in 1981 and in 1983 her mother (AP) began a relationship with a British citizen (PON). In 1985 the applicant's mother travelled to England to set up home with PON and she was later joined by her four children.

The applicant alleges that following the move to London she was emotionally, physically and sexually abused by PON.

In 1986 the applicant moved to Argentina, where she lived with her grandparents. During this time she had no conscious recollection of the sexual abuse; however, due to her erratic behaviour she was sent twice weekly to a psychiatrist.

The applicant returned to London in 1988 to live with her mother, PON, and her three younger siblings. She claims that on her return PON once again began to abuse her both physically and sexually. The abuse continued until she moved out of the family home in 1991.

Initially the applicant did not tell anyone of the abuse. However, in 1991 her younger sister, VV, told a family friend that she had been sexually abused by PON. This information was eventually related to AP, who confronted the applicant about it. The applicant confirmed that she too had been sexually abused by PON. AP did not immediately report the allegations to the police.

Instead, in 1992 AP left PON and returned to Argentina with FV. VV had already returned to Argentina and was living with her grandparents while the applicant had gone to live in Portugal.

By 1993 AP, VV and FV had returned to the United Kingdom. It was at this time that AP reported the allegations of sexual abuse by PON to the Metropolitan Police. During the subsequent investigation witness statements were taken from the applicant, VV, FV, AP, PON's ex-wife (CON), and his two children from that marriage (GON and KON). The applicant's brother, LV, was not interviewed at this time.

In her interview VV revealed that PON had abused her in a number of ways from the age of eight, predominantly by rubbing himself against her with his penis. She also described being fondled in a jacuzzi, horsewhipped, bitten on her bottom and karate-chopped between her legs. FV also described being made to have a shower with PON and being punished by him with a whip. She also stated that she was aware VV had been touched inappropriately by PON.

In April 1993 the applicant returned from Portugal to give a statement. In that statement she described what had taken place in 1986 when AP had gone away for a week, leaving the children in the care of PON. The applicant was twelve years old at the time. She stated:

“ [PON] asked me if I would sleep with him. I was only 12 so I thought nothing of it. I went to sleep in his bed ... I remember [he] had wrapped his leg over me and pulled me close. I was scared. I was lying on my stomach and [he] was lying on my right. I remember him breathing. I was not sure what [he] was doing but I felt he was trying to make me take my Mum's place while she was away ... My Mum was away for a week. I cannot remember how many times this happened but I think it happened more than once.”

The applicant also described a time when she was fifteen years old when AP had returned to Argentina for three weeks:

“[PON] told me that he had a heart condition and asked me to sleep with him as he was scared to sleep alone. I said I would. When it came time to go to bed I went into my brother's room, got the sofa bed and put that next to his bed and slept there. He made me hold his hand but nothing else. The next day he was angry and said I was no company and that he would ask [VV] to take my place.”

She also stated that:

“I also remember when I was 12 he would give me driving lessons. He would sit me on his lap and get me to move the steering wheel. I think this was strange now because he never offered to do this when I was 16.”

Social services' records also indicated that AP had informed a social worker on 10 March 1993 that the applicant had told a friend that PON had fondled her breasts when she was twelve.

In her interviews with police and social services KON at times claimed that she had not been abused, while on other occasions she implied that she had. She said that T, another child of PON who was living in Malta, had told her that he had put his hands down her jeans and fondled her.

PON was arrested and questioned in May 1993. Although the tapes of the interview have since been destroyed the entry in the crime report stated that he denied all of the allegations. He was released on bail and told to return to the police station on 14 June 1993.

On or about 20 May 1993 the police decided, without any reference to the Crown Prosecution Service, that no further action would be taken against PON. The relevant entry in the crime report, which was written by PC G, read as follows:

“Nothing has been heard directly from Malta about T [another child of PON] being abused. This matter will have to be reinvestigated should T ever come to England and make an allegation. In discussion with Detective Sergeant [B] we have formed the opinion that there is insufficient evidence for a successful prosecution in this case. A lot of pressure would be put on KON in respect of her evidence. It is not clear that she would attend court, leaving MV and VV unsupported in their account of what happened. In view of the above I shall classify this as no crime. Should any further evidence come to light this will of course be reclassified and investigated accordingly.”

On 20 May 1993 PC G informed PON's solicitor by telephone that he would not face prosecution. PC G and Detective Sergeant B also informed the applicant and her family that no prosecution would take place and that this decision had been made 'in order to protect the children'.

On 18 August 1993 a child protection case conference was held concerning VV and FV. Detective Sergeant B was in attendance. At that meeting AP produced a tape recording of a telephone conversation she had with PON. In the course of the conversation PON belittled the abuse and sought to blame VV for what had happened. It appears that AP had further tape recordings but the police did not ask to see them at this time.

The conference concluded that:

“We believe that [VV] has been sexually abused and we will place her name on the Child Protection Register in the category of Sexual Abuse and likely significant harm of emotional abuse.

Appropriate boundaries have been breached by [PON] entering the room whilst [FV] was in the shower. We believe he has abused other children and that [FV] is at risk of being abused by him. We will therefore place her name on the register in the category of likely significant harm from sexual abuse.”

It was therefore decided that social services would seek to accommodate VV and treatment would be offered to her. FV was to remain with AP under the condition that she have no contact with PON. Treatment was also to be offered to her.

In August 1993 FV went to live with her biological father in Portugal. However, she returned to the United Kingdom in December 1993 and thereafter lived with AP and PON, who were again co-habiting. Her name was again placed on the Child Protection Register.

In 1994 AP married PON. The relationship was on and off for the next few years before finally coming to an end in January 1999.

In 1999 all interview records, case notebooks and the custody record were destroyed.

In November 2000 the applicant's brother, LV, committed suicide. The following month, the police re-opened the investigation into the allegations of abuse. It was agreed, however, that the re-investigation would only consider new evidence.

On 6 June 2001 the applicant gave a further statement. In that statement she explained:

“I made a witness statement to Police on the 10th April 1993, regarding [PON]. I was 19 years old and at the time couldn't bring myself to give the full details of what took place. I wish to add the following...”

She proceeded to set out in greater detail the allegations made in April 1993. In particular, she stated that during the “driving lessons” PON had had an erection and moved under her. Moreover, she claimed that after inviting her to sleep in his bed he had also had an erection and was rubbing himself against her in a sexual motion. Afterwards, her nightdress was wet. In addition, she alleged that the sexual abuse had been accompanied by serious cruelty, physical abuse and the humiliation of all the children.

PON was arrested on 4 July 2001 and subsequently charged with thirteen counts of indecency and child cruelty, two counts of indecency and one count of cruelty related to offences committed against the applicant.

On 28 August 2001 the police were given AP's tape recordings of conversations she had had with PON concerning the abuse. One of the tapes contained the following statements by PON:

“I want you to understand something. These things that happened with [VV] happened three years ago, OK. And they got out of hand between us but not too much, [AP], but it doesn't make it right...I want to sort this out with you and [VV] ... at the end of the day...I was the adult and I should have fucking stopped it. But I never took her knickers down or tried to screw her or anything like that, for fuck's sake...what happened with [VV] was the situation, not the way I am. OK. You can trust me ... Things happened with [VV], but not what you think happened, not what you think happened...I'll tell you what happened and I'm not proud of it. I'm ashamed. It got too close with [VV], but it wasn't one way, and I was the adult and should have stopped it. But she never touched me or done anything ... I've never done anything that bad to [VV] Bad enough, but not that bad.”

On 3 September 2002 Croydon Crown Court ordered that the prosecution against PON be stayed because of abuse of process. The court gave three reasons for its decision: first, in 1993 PON had been told unequivocally that no further police action would be taken; secondly, little evidence had been discovered in addition to that which was available in 1993; thirdly, there was material which was no longer available, particularly in relation to contemporaneous notes of interview, as a result of which it would be impossible for PON to have a fair trial. The applicant did not challenge this decision.

During the hearing, police officers gave slightly divergent evidence concerning the 1993 investigation. Detective Sergeant B indicated that there had been a prima facie case against PON but it was not considered to be in the best interests of the applicant and her siblings to put the case before a court. Sergeant G (formerly PC G) agreed that the reason not to proceed was mainly to do with the children's welfare but stated that in any case there had been insufficient evidence to prosecute.

On 11 October 2005 the applicant filed a civil claim in which she claimed damages from the Commissioner of Police for the Metropolis for personal injury and loss arising from the alleged negligent manner in which the police had pursued the allegations of child cruelty and indecent assault against PON and from the decision not to prosecute. The Commissioner applied to have the application struck out on the basis that it disclosed no reasonable grounds.

In a decision dated 21 June 2006, the District Judge considered the decision not to prosecute to be separate and apart from the police investigation. Insofar as the claim concerned the conduct of the police investigation, the judge held that the allegations had to be struck out as the law did not impose a duty of care on the police in respect of the conduct of a criminal investigation. Such a duty could only arise if it could be shown that the police had assumed responsibility towards a particular claimant in such a manner as to give rise to a duty. However, that was not the position in the present case. The judge accepted that exceptionally, in a child cruelty and sexual abuse case, if an investigation had been carried out so negligently that a child was not protected from future harm, it was at least arguable that the police might exceptionally be held liable. However, he held that the above exception did not apply to the applicant as she was no longer a child in 1993 and had therefore been in no different a position to any ordinary witness or victim.

With regard to the failure to prosecute, the District Judge considered it arguable that a limited duty of care might arise in the context of the facts of the case. In particular, the judge found it disturbing that the CPS was not apparently even consulted with regard to the failure to prosecute PON, particularly in view of the severity and magnitude of the alleged offences. Indeed, he noted that it would have been expected that the file was at least sent to the CPS for its consideration as to whether or not to prosecute. However, instead of sending the file to the CPS the police had taken the decision not to prosecute themselves on the ground that it would not be in the best interests of the applicant or her sisters.

The Commissioner of Police appealed to the County Court against the District Judge's decision, maintaining that he should have struck out the claim regarding the decision not to prosecute. The applicant cross-appealed on the ground that the judge had been wrong to strike out the claim in relation to the investigation. Following a lengthy consideration of the District Judge's decision, on 8 February 2007 the court dismissed the appeal and the cross-appeal, leaving the decision of the District Judge as it was. In doing so, the judge noted that it was possible, even if the possibility was not a very strong one, that further examination of the facts, reasoning and information behind the 1993 decision not to prosecute might lead to the conclusion that the taking of that decision gave rise to a limited duty of care.

The Commissioner appealed to the Court of Appeal. At the hearing, counsel for the applicant conceded that there could be no claim for negligent failure to investigate the complaints properly in 1993 and the lower courts had been right to strike out those aspects of the claim. He argued, however, that the decision not to prosecute was different because in coming to that decision the police had taken into account the interests of the children.

On 21 December 2007 the Court of Appeal allowed the appeal and struck out the applicant's claim altogether. It found that following Hill v. Chief Constable of South Yorkshire Police [1989] AC 53 (see below), the existence of a duty of care in a case such as the present would not be in the public interest as it would lead to the police carrying out their duties in a detrimentally defensive frame of mind. In any case, the Court of Appeal noted that even if there had been a duty of care, the applicant's Particulars of Claim did not disclose a cause of action because she would have had to have pleaded – and could not possibly have pleaded – that no reasonable prosecutor would have failed to prosecute.

On 30 July 2008 the House of Lords refused to grant the applicant permission to appeal on the basis that the petition did not raise an arguable point of law of general public importance.

On 10 February 2006 Dr. N, a Consultant Psychiatrist, prepared a report on the applicant.

In that report he noted that she was suffering from clinical depression which was moderate in its severity. Although he noted evidence of propensity to mental disorder within the family, he concluded that her experience of abuse while she was a child was the original cause of the mental disorder now afflicting her. However, he considered that the applicant's experience of uneven and unsettled parenting by AP was also a contributory factor.

With regard to the question of whether the failure of the original prosecution of PON was a significant contributing factor, Dr. N acknowledged that the answer was “a difficult and complicated determination resting as it does upon the implication of the narrative biography, the complex family dynamics, subconscious psychological themes and a broader consideration of [the applicant's] personality, psychological constitution and prospects”. Nevertheless, although the argument was “both subtle and complex”, he concluded that “a significant proportion of [the applicant's] ongoing psychological difficulties can be traced to the failure of the original prosecution of [PON] in 1993”.

Physical and sexual abuse of a child are criminal offences in England and Wales. Prior to 1 May 2004, the relevant sexual offences were set out in the Sexual Offences Act 1956, the Sexual Offences Act 1967, the Sexual Offences (Amendment) Act 1976 and the Sexual Offences (Amendment) Act 1992 (“the Sexual Offences Act 1956 to 1992”). Cruelty to a person under sixteen years of age is – and was at the material time – a criminal offence by reason of section 1(1) of the Children and Young Persons Act 1933.

Under domestic law the police owe no general duty of care in tort to victims of crime to investigate their allegations (Hill v. Chief Constable of South Yorkshire Police [1989] AC 53). However, this position is not tantamount to a “blanket immunity” and in certain cases the police could be found to owe a duty of care to a victim (see, for example, Swinney v. Chief Constable of Northumbria Police Force [1997] QB 464, in which the police appeared to have assumed responsibility for the victim's safety).

Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Section 7(1) of the Act provides that a person who claims that a public authority has acted or proposes to act in a way which is unlawful pursuant to section 6(1) may bring proceedings against the authority under the Act in the appropriate court or tribunal or may rely on the Convention rights concerned in any legal proceedings.

Pursuant to section 8, the court may grant such relief or remedy, or make any such order within its powers as it considers just and reasonable in relation to any act of a public authority which it finds is unlawful.


CASE OF INDUSTRIAL FINANCIAL CONSORTIUM INVESTMENT METALLURGICAL UNION v. UKRAINE

Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;(Art. 35-3-a) Ratione materiae;Remainder inadmissible (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal;Independent tribunal);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

On 6 August 2003 the Cabinet of Ministers decided that Kryvorizhstal State Metallurgical Enterprise (hereinafter “Kryvorizhstal”) was to be privatised. At the time Kryvorizhstal was one of the world’s largest steel manufacturing companies, employing about 60,000 people and producing about 20% of Ukraine’s annual steel supply. On 4 November 2003 the Ministry of Economy and European Integration included Kryvorizhstal in a list of State-owned assets which were to be privatised. Subsequently, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market adopted decisions designed to ensure the privatisation of the enterprise.

The applicant company was founded in April 2004 by nine private companies, five of which were owned or controlled by A., one of the leaders of the Party of Regions. Members of that party held the majority of posts in the Cabinet of Ministers in the period 2003-2004, including the post of Prime Minister. The remaining four companies were owned or controlled by P., the son-in-law of Mr L. Kuchma, the second President of Ukraine who held the post from 19 July 1994 to 23 January 2005.

On 12 May 2004 the State Property Fund (“the Fund”) announced a bidding competition for the purchase of 93.02% of the share capital of Kryvorizhstal. A condition of bidding was that a bidder had to have produced one million tons of charcoal of Ukrainian origin and two million tons of steel in Ukraine in each of the three years preceding the competition. The applicant company took part in that competition.

Out of six bids submitted by various companies, the Fund selected bids by the applicant company and Consortium Industrial Group, finding that these companies satisfied the conditions of the competition.

On 14 June 2004 the applicant company was declared the winner (successful bidder) of the bidding competition. On the same day the applicant company concluded a purchase contract with the Fund and paid 4,260,000,000 Ukrainian hryvnas (UAH), the equivalent of about 608,000,000 euros (EUR) at the time, for the shares at issue. The shares were transferred to the applicant company’s deposit account at ING Bank Ukraine.

On 23 July 2004 the applicant company appointed T. to represent it as the owner of the Kryvorizhstal shares and to complete the formalities of the transfer pursuant to the contract of 14 June 2004.

Without any further specification or evidence, the applicant company stated that it had invested substantial financial resources in Kryvorizhstal during the period of its control.

The lawfulness and transparency of the privatisation of Kryvorizhstal was contested by the political opposition, whose leaders in 2004 were Mr V. Yushchenko, Mrs Y. Tymoshenko and Mr O. Moroz. In their public statements, they all accused President Kuchma, P. and A. of fraud, and called for the enterprise to be returned to the State.

During the 2004 presidential election campaign the issue was debated by two main rivals, Mr Yushchenko and Mr Yanukovych. Mr Yanukovych, whose candidature was openly supported by President Kuchma and A., insisted that the privatisation of Kryvorizhstal had been lawful and fair.

Between late November 2004 and January 2005 a series of protests took place in the immediate aftermath of the run-off vote of the 2004 election, an election which, according to numerous national and international reports, was compromised by massive corruption, voter intimidation and direct electoral fraud. These events are commonly known as the Orange Revolution.

Following the revote of 26 December 2004, Mr Yanukovych lost the election to Mr Yushchenko, who became the third President of Ukraine on 23 January 2005. On 24 January 2005 Mrs Tymoshenko was appointed to the post of interim Prime Minister. On 4 February 2005 the Verkhovna Rada (Ukrainian Parliament) approved the appointment of the new Cabinet of Ministers, headed by her. The Party of Regions formed the parliamentary opposition.

According to different media reports submitted by the applicant company, between January and April 2005 President Yushchenko and Prime Minister Tymoshenko made public statements that the privatisation of Kryvorizhstal had been unlawful, and that the enterprise would be returned to the State and subsequently resold.

In particular, in an interview of 26 January 2005 Prime Minister Tymoshenko said that “Ukrainian enterprises, like Kryvorizhstal, which had blatantly been stolen, had to be returned to the State.”

On 4 February 2005 President Yushchenko made the following statement when addressing the Verkhovna Rada:

“...I promise that fair privatisation will be carried out this year. Those facilities which were stolen, starting with Kryvorizhstal, will be returned to the State ...”

On 12 February 2005 the Cabinet of Ministers revoked its decision of 6 August 2003 by which the privatisation of Kryvorizhstal had been launched. On 15 February 2005 the Fund also revoked its decisions concerning the privatisation.

On 8 June 2005 the State took control of Kryvorizhstal, pursuant to commercial court decisions declaring its privatisation unlawful (see paragraphs 51-53 and 56-57 below). By a decree of 11 June 2005, the Cabinet of Ministers declared the contract of 14 June 2004 invalid and withdrew the Kryvorizhstal shares from the applicant company.

On an unspecified date the money paid for the shares in the enterprise in 2004 was returned to the applicant company.

By two decrees of 23 June 2005, the Cabinet of Ministers launched the procedures for resale of 93.02% of Kryvorizhstal’s share capital. On 9 August 2005 it approved the bidding conditions. The next day the bidding competition was officially announced.

The applicant company did not participate in the competition. Instead, it challenged the authorities’ decrees issued in February and June 2005 before the commercial courts and the courts of general jurisdiction, but to no avail. The applicant company did not provide any further details of those proceedings.

On 24 October 2005 the bidding competition was completed by an auction, which was broadcast live by major television stations. Mittal Steel Germany GmbH was declared the successful bidder. On 28 October 2005 it concluded a purchase contract with the Fund and became the new owner of 93.02% of Kryvorizhstal’s share capital, for the price of UAH 24,200,000,000, the equivalent of about EUR 3,964,021,752 at the time. Eventually, Mittal Steel Germany GmbH was succeeded by ArcelorMittal Duisburg GmbH, which, according to the documents submitted by that company, made significant investments in Kryvorizhstal.

According to the applicant company, after the 2004 election A. was targeted for his political expression and association. In particular, companies which he owned or controlled were subjected to various checks by the authorities. The authorities allegedly attempted to nationalise some of those companies, though they were unsuccessful. The applicant company submitted copies of several petitions to the domestic authorities made by third parties with a view to preventing the nationalisation of those companies.

On 28 May, 3 and 11 June 2004 respectively, three private individuals, N., a lawyer practising in Kyiv, S. and Kh., members of Parliament, lodged with the Golosiivskyy District Court of Kyiv three separate administrative law complaints against the decisions of the Fund and the State Commission on Securities and the Stock Market concerning the organisation of the 2004 bidding competition, contending that those decisions had violated the right of every citizen to participate in the privatisation of State property.

On an unspecified date the President of the Kyiv Court of Appeal transferred the case to the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”). By separate decisions of 8 and 14 June 2004, the latter court refused to consider those complaints, and ordered that its decisions be immediately “enforced”. No copy of those decisions was provided to the Court.

On 2 August 2004 the Kyiv Court of Appeal changed the decisions of 8 and 14 June 2004 in part by excluding the provisions concerning their immediate enforcement.

On 14 June 2004 I., a private individual, and N. lodged with the Shevchenkivskyy District Court of Kyiv a claim against the Fund, the State Commission on Securities and the Stock Market, and ING Bank Ukraine, challenging the validity of their decisions and actions in connection with the privatisation of Kryvorizhstal. On an unspecified date the case was transferred to the Pecherskyy Court.

At the claimants’ request, the applicant company was invited to participate in the proceedings as a third party. By letters of 20 October and 25 November 2004, the Pecherskyy district prosecutor applied to the court for leave to participate in the case to represent the interests of I. and those of the State. The prosecutor’s application was granted.

On 25 June 2004 Consortium Industrial Group, the losing party in the 2004 bidding competition, instituted proceedings in the Kyiv Commercial Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions adopted in connection with the privatisation of Kryvorizhstal and the contract of 14 June 2004. It contended that the 2004 bidding competition had been unlawful and unfair.

In particular, Consortium Industrial Group argued that the shares in Kryvorizhstal had not been issued in accordance with the law; that the competition had not been announced in due time; that the conditions of the competition had been too narrow and restrictive, thereby limiting the circle of potential bidders and disrespecting the statutory right of every citizen to participate in the privatisation of State assets; that the shares should have been sold through the stock exchange; and that its total offer, including the money it had planned to invest in Kryvorizhstal, had been higher than the amount paid by the applicant company for the shares in the enterprise. It also argued that, because the complaints by three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts in the period May-June 2004, any decision adopted between 8 and 14 June 2004 in relation to the competition had been invalid.

On 5 July 2004 the applicant company lodged a counterclaim against the other parties to the proceedings, asking the court to endorse its right to 93.02% of the Kryvorizhstal shares.

By a procedural ruling of 20 July 2004, the Kyiv Commercial Court found that the Office of the Prosecutor General had to participate in the proceedings, and ordered it to designate a representative in the proceedings. Notwithstanding that ruling, no prosecutor appeared before the Kyiv Commercial Court or the Higher Commercial Court in 2004.

Kryvorizhstal took part in the proceedings as a third party.

On 19 August 2004 the Kyiv Commercial Court, having considered the arguments of Consortium Industrial Group in detail, dismissed them as unsubstantiated and found that the privatisation of Kryvorizhstal had been carried out in accordance with the relevant legislation. The court held, inter alia, that citizens’ rights to participate in the privatisation had not been restricted, since they had been free to establish companies and participate in the competition through such companies. It also stated that the complaints by the private individuals against the competition had not been lodged in accordance with the law, and thus had had no suspensive effect. The court further endorsed the applicant company’s property rights over the Kryvorizhstal shares, and banned any actions by the defendants which could violate these rights.

Consortium Industrial Group appealed in cassation to the Higher Commercial Court.

On 22 October 2004 the Higher Commercial Court held a hearing in the presence of the parties’ representatives and upheld the judgment of 19 August 2004. The parties made no appeal to the Supreme Court against the decision of 22 October 2004.

On 7 February 2005 the Prosecutor General lodged a cassation appeal in the interests of the State with the Supreme Court, alleging that the contested decisions of the Kyiv Commercial Court and the Higher Commercial Court concerned the rights and obligations of the Cabinet of Ministers. The Prosecutor General sought an extension of the time-limit for lodging his appeal, stating, without giving any further details, that he had missed it since he had only become aware of the decision of 22 October 2004 in the course of examining a complaint by S. to the Prosecutor General. According to the Government, the Office of the Prosecutor General had received that complaint on 30 December 2004, and it had been directed mainly against the decision of the Higher Commercial Court of 22 October 2004.

In his appeal, the Prosecutor General mainly challenged the application of the law by the Kyiv Commercial Court and the Higher Commercial Court, and alleged that those courts’ decisions had been inconsistent with a decision of the Supreme Court in a similar case. He also stated that the courts had failed to invite the Cabinet of Ministers to take part in the proceedings, although the subject matter had concerned its functions under the relevant privatisation regulations.

On 17 February 2005 the Supreme Court granted the extension requested and opened the proceedings on the merits of the Prosecutor General’s cassation appeal. No copy of that procedural ruling was provided to the Court.

On 1 March 2005 the Supreme Court allowed the appeal by the Prosecutor General, quashed the decisions of the lower courts, and remitted the case for fresh consideration. It found that under Ukrainian law neither Consortium Industrial Group nor the applicant company had been eligible to participate in the 2004 bidding competition; that the competition had not been announced in due time, as required by law; and that the lower courts, when allowing the applicant company’s counterclaim, had erred in applying the rules of procedure, which stated that no counterclaim could be lodged by a defendant against another defendant in the proceedings.

On 21 March 2005 the Deputy Prosecutor General lodged with the Kyiv Commercial Court, to which the case had been remitted, a claim in the interests of the State and on behalf of the Fund against the applicant company, the Ministry of Industrial Policy, and the State Commission on Securities and the Stock Market. His claim was directed against the decisions concerning the privatisation of Kryvorizhstal and the contract of 14 June 2004. He also sought the return of the Kryvorizhstal shares to the Fund, and asked the court to seize the shares as a temporary measure until the dispute was finally resolved.

The Deputy Prosecutor General argued that the 2004 bidding competition had not been organised in a lawful and fair way, particularly regarding the conditions which the potential bidders had had to satisfy. He further submitted that the bidders whose offers had been chosen had not satisfied the legislative requirements for participating in that competition.

On 23 March 2005 the court held a hearing in camera at which it decided to open the proceedings and invite the parties to submit their arguments on the case. It also scheduled the next hearing for 1 April 2005.

On 1 April 2005 the court ordered that ING Bank Ukraine, where the shares at issue had been deposited, participate in the case as a defendant. The Office of the General Prosecutor was granted leave to take part in the proceedings as a third party on behalf of the Cabinet of Ministers.

On 15 April 2005 the applicant company requested that the court allow journalists to attend the hearings in the case. The court rejected that application, finding that the journalists had not obtained official authorisation from the court administration.

Subsequently, journalists obtained the necessary authorisation and attended the hearings.

On 21 April 2005 a copy of the Pecherskyy Court’s decision of 21 April 2005 (see paragraph 83 below) was included in the case file and examined by the court at a hearing on the same day.

On 22 April 2005 the court delivered a judgment in the case whereby it allowed the claims of Consortium Industrial Group and the Office of the Prosecutor General, which it found to be of the same nature. It annulled the authorities’ decisions concerning the 2004 privatisation and the contract of 14 June 2004, and ordered the Fund to return the money paid by the applicant company for the Kryvorizhstal shares. The applicant company’s counterclaim was rejected, and it was ordered to return the shares to the Fund and pay UAH 1,903, the equivalent of about EUR 291 at the time, to the State for costs and expenses.

The court held that the Fund had failed to announce the competition in due time; that it had unlawfully introduced a condition concerning the production of charcoal and steel; that the Fund had failed to set out specific conditions of sale of certain number of the Kryvorizhstal shares outside the bidding competition; that the Fund’s decisions issued between 8 and 14 June 2004 in relation to the competition had been invalid, as the complaints of three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts during that period; and that the applicant company and Consortium Industrial Group had unlawfully been allowed to participate in the competition.

By a procedural ruling of 28 April 2005, the same court seized the shares at issue. On the same day, bailiffs started enforcement proceedings in respect of that ruling.

The applicant company appealed against the judgment of 22 April 2005 and the ruling of 28 April 2005. According to the text of the Kyiv Commercial Court of Appeal’s decision of 2 June 2005 (see paragraph 56 below), the applicant company contended that the Kyiv Commercial Court had wrongly established the , and that it had erred in applying the law. The applicant company further challenged the lawfulness of the bailiffs’ actions as regards enforcement of the ruling of 28 April 2005. No copy of the applicant company’s appeal was provided to the Court.

In the appeal proceedings, the applicant company asked the Kyiv Commercial Court of Appeal to suspend the proceedings before the commercial courts pending the outcome of the proceedings before the courts of general jurisdiction (see paragraphs 81-87 below). The court rejected that application on the grounds that the latter proceedings were not decisive for the outcome of the commercial case.

On 2 June 2005 the Kyiv Commercial Court of Appeal changed the judgment of 22 April 2005 in part. In particular, the appeal court found that the claims by Consortium Industrial Group had to be rejected, as it had not been eligible to participate in the 2004 bidding competition. The applicant company’s appeal was dismissed as unsubstantiated.

By the same decision, the appeal court annulled the ruling of 28 April 2005 for non-compliance with the procedural rules, and refused to consider the applicant company’s complaints against the bailiffs, on the basis that the matter fell outside its jurisdiction. The court further ruled to seize the Kryvorizhstal shares for the purpose of securing the claim by the Office of the Prosecutor General.

The applicant company appealed in cassation. No copy of the cassation appeal was provided to the Court.

On 21 July 2005 the Higher Commercial Court rejected the applicant company’s cassation appeal as unsubstantiated.

On 31 August 2005 a panel of three judges of the Supreme Court rejected the applicant company’s further cassation appeal. No copy of that appeal was provided to the Court.

In the course of the proceedings before the commercial courts between February and June 2005 the applicant company challenged the impartiality of the judges and the courts dealing with its case on a number of occasions, alleging that their decisions and actions were influenced by government officials. According to the text of the judgment of the Kyiv Commercial Court of 22 April 2005 and the decision of the Kyiv Commercial Court of Appeal of 2 June 2005 (see paragraphs 51-52 and 5657 above), the applicant company’s procedural applications were rejected as unsubstantiated. No further explanation in that regard was given by the courts.

After 1 March 2005, and while the applicant company’s case was being considered by the commercial courts, the President and the Prime Minister made a number of public statements concerning the proceedings. The applicant company submitted different media reports reproducing and/or interpreting those statements. The Government argued that some of the reports had not interpreted the statements accurately. In particular, they referred to the reports concerning the Prime Minister’s press conference of 5 April 2005, at which she had made statements as to when the ongoing proceedings before the Kyiv Commercial Court might be completed.

According to a number of other reports, at a press conference of 11 April 2005 the Prime Minister said:

“... Facilities such as Kryvorizhstal ... I think that today the [authorities] are involved in the court proceedings concerning the return of those assets to the State. We are confident that we have a clear position [in relation to the case], and these enterprises will be returned to the State ...”

In an interview of 14 April 2005 the President stated:

“... If the owners refuse to cooperate voluntarily, we will go down the legal route and will undoubtedly win [the case]. [However,] this will take several months...

The facility has been stolen, and the cost of that theft is several billion [United States] dollars. For me, this is a fact...

We prepare the terms of a new [bidding] competition...”

On 23 April 2005, commenting on the possibility that the applicant company could appeal against the judgment of 22 April 2005, the Prime Minister stated:

“... This will be an important decision by the appeal [court]. It will be evidence not only of the court’s objectivity, but also of the [past] negotiations behind closed doors between various representatives from the authorities and the business...”

In July 2004 Consortium Industrial Group instituted proceedings in the Pecherskyy Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions issued in connection with the privatisation of Kryvorizhstal and the contract of 14 June 2004. Consortium Industrial Group relied mainly on the same circumstances and considerations referred to in its claims before the commercial courts. Its claims before the courts of general jurisdiction contained an additional element – a challenge to the validity of T.’s appointment on 23 July 2004 as the applicant company’s representative in the procedures following the 2004 bidding competition.

T. took part in the proceedings as a defendant. Kryvorizhstal participated in the proceedings as a third party.

On 25 August 2004 the court delivered a judgment dismissing the claims of Consortium Industrial Group. For the most part, it contained identical reasons to those in the judgment of the Kyiv Commercial Court of 19 August 2004 (see paragraph 37 above).

On 1 and 27 December 2004 respectively the Kyiv Court of Appeal and a panel of three judges of the Supreme Court upheld the judgment of 25 August 2004.

On 9 February 2005 N. lodged an application for review of the above case with the Pecherskyy Court, in the light of newly discovered circumstances. In particular, she argued that the findings concerning the right of every citizen to participate in the privatisation of State assets contained in the judgment of 25 August 2004 had been contrary to the judgment of the Constitutional Court of 1 December 2004 (see paragraph 99 below). She also contended that the courts had not been aware of the fact that the decisions of the Pecherskyy Court of 8 and 14 June 2004 had been challenged on appeal, and thus they had not become final before 2 August 2004.

N.’s application was dealt with by the same judge of the Pecherskyy Court who had sat in the main proceedings.

By a telegram of 15 February 2005, the court informed the applicant company that the next day it would hold a hearing, at the request of N..

On 15 February 2005 the applicant company lodged with the court an application to consult the case file. The application was not granted.

On 16 February 2005 the court held a hearing on the merits of N.’s application. Consortium Industrial Group, T., the State Commission on Securities and the Stock Market and Kryvorizhstal, who had been the parties to the main proceedings, did not take part in the hearing.

The representatives of the applicant company requested leave to consult the case file and the adjournment of the hearing on the grounds that they had not been informed about the merits of the application before the hearing, and accordingly had not been able to prepare for it. They also sought the withdrawal of the judge dealing with the case, challenging her impartiality.

The judge rejected the applications by the applicant company’s representatives, and read out the application by N.

The applicant company’s representatives objected to the application, arguing that N. was not entitled to ask for a review of the case, since she had not been a party to the original proceedings, and there were no newly discovered circumstances or other reasons capable of warranting the reopening of the proceedings.

The applicant company’s representatives did not receive a copy of the application either before or during the hearing.

On 17 February 2005 the court allowed the application. It found that the right of every citizen, including that of N., to participate in privatisation and challenge its lawfulness had been confirmed by the judgment of the Constitutional Court of 1 December 2004. It also held that the ruling of 8 June 2004 on N.’s complaint concerning the 2004 competition had not entered into force at the time when the competition had taken place, and thus it could not have served as one of the grounds for rejecting the claims by Consortium Industrial Group.

The court quashed its judgment of 25 August 2004 and held that the higher courts’ decisions of 1 and 27 December 2004 were no longer valid.

On an unspecified date the case was transferred to another judge of the Pecherskyy Court for fresh examination.

On 28 February 2005, following an application by N., the Pecherskyy Court decided to examine the claims of I., N., and Consortium Industrial Group (see paragraphs 30 and 65 above) jointly, holding that they were of the same nature and concerned the same defendants.

On an unspecified date the applicant company lodged an application for review of the ruling of 17 February 2005 with the same court, in the light of newly discovered circumstances.

On 21 April 2005 the court granted the application by the applicant company, quashed the ruling of 17 February 2005, and rejected N.’s application of 9 February 2005 on the grounds that she had not participated in the original proceedings concerning the claims by Consortium Industrial Group.

By a separate ruling of the same date, the court rejected the claims by I. and N., finding that they had not participated in the 2004 bidding competition and did not have an arguable claim in respect of the subject matter of the proceedings. The court held that their claims represented a disguised attempt to settle a dispute between legal entities falling within the jurisdiction of commercial courts.

By decisions of 20 and 27 July 2005, the Kyiv Court of Appeal quashed the ruling of 21 April 2005, stating that, in the light of newly discovered circumstances, the ruling of 17 February 2005 was not to be reviewed, and that, with regard to Article 6 of the Convention, the Pecherskyy Court had unlawfully limited I.’s and N.’s right of access to a court.

On 15 October 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 20 and 27 July 2005.

The case was remitted to the Pecherskyy Court, which on 6 February 2008 decided not to examine the claim of Consortium Industrial Group, because its representatives had failed to appear before the court.

No appeal was lodged against the decision of 6 February 2008. According to the Government, on the basis of that decision the joined proceedings before the courts of general jurisdiction were terminated. The applicant company did not contest this.


No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1975 and lived in Novosibirsk before his arrest.

On 12 November 2010 the Kalininskiy District Court of Novosibirsk convicted the applicant of aggravated theft and armed robbery and sentenced him to nine years’ imprisonment. The applicant was represented by a lawyer in these proceedings.

On 24 January 2011 an appeal brought by the applicant himself was examined by the Novosibirsk Regional Court in the absence of counsel. The appeal court upheld the applicant’s conviction.

The applicant has been serving his sentence in IK-8 in Novosibirsk since 10 February 2011.

As regards the conditions of the applicant’s detention in the IK-8 facility, the Government submitted information which can be summarised as follows:

The Government also submitted that all the units where the applicant had been detained had had a sufficient number of sleeping places for all the detainees, they had been ventilated through openings in the windows and had had access to cold water in accordance with up to date sanitary standards. The units were equipped with ten to fifteen kettles to boil water and tanks containing potable water. All the lavatories had individual cabins with doors that were one and a half metres high, opening to the outside. They submitted photographs of the washbasins and lavatories.

The applicant acknowledged that he had an individual sleeping place. However, he underlined that the conditions he had to live in were cramped. He further submitted that the units had no access to natural light or had poor artificial lighting, that the ventilation did not work and that the air was damp. The food he was provided was not in accordance with the special diet prescribed for him. Furthermore, inmates with tuberculosis lived in the same dormitory. There were only three lavatories (in units 17 and 7), they had no doors and the applicant had no privacy when using them. They were clogged up most of the time owing to the number of people using them. Prisoners were only allowed one shower a week. The applicant had no access to potable water and only one washbasin out of four had worked. There were only two kettles for boiling water and the electricity was switched off during the day and therefore it was not possible to have boiled water. The applicant further submitted that the buildings where his units were located were in a hazardous condition and that the roof and walls were liable to fall in at any time owing to a lack of repairs. Lastly, the applicant adduced written statements from his four co-detainees who confirmed his account of the conditions of detention in IK-8 in Novosibirsk.