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BENYAMINSON v. UKRAINE - 31585/02 [2007] ECHR 647 (26 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/647.html
Cite as:
[2007] ECHR 647
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FIFTH
SECTION
CASE OF BENYAMINSON v. UKRAINE
(Application
no. 31585/02)
JUDGMENT
STRASBOURG
26 July
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Benyaminson v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31585/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Aleksandr Isaakovich
Benyaminson (“the applicant”), on 26 July 2002.
The applicant died on 14 November 2004. On 5 February
2005 his partner and sole heir, Ms Nadezhda Stepanovna Cherkassova,
expressed the wish to continue the proceedings before the Court on
the applicant's behalf. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Yuriy Zaytsev.
On
7 December 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
The
applicant was born in 1943 and lived in Simferopol.
A. Criminal proceedings against the applicant
On
9 December 1998 criminal proceedings were instituted against the
applicant for fraud and forcible assertion of a private right
(самоправство).
He was suspected of having circumvented the divorce proceedings by
way of forging his ex-wife's signature on the petition for divorce
and substituting her in the court proceedings with another woman.
This had allegedly been done with a view to obtaining the sole
ownership of the matrimonial estate.
On
15 December 1998 the applicant was arrested (затриманий)
and placed in police custody.
On
16 December 1998 the Alushta Town Prosecutor (Прокурор
міста Алушта)
ordered the applicant's detention on remand (взяття
під варту).
On
21 December 1998 the applicant's ex-wife was admitted to the
proceedings as a victim (потерпіла).
On
13 January 1999, ruling
on a request for release,
that had been
filed by the
applicant's
lawyer, the
Alushta Town Court
(Алуштинський
міський суд)
decided to release the applicant on an
undertaking not to abscond (підписка
про невиїзд).
On
21 January 1999 an investigator of the Alushta Town Police Department
(слідчий
СВ Алуштинського
МВ УМВС в АР
Крим, hereafter “the
investigator”), assigned to deal with
the case, adjourned the proceedings until 11 February 1999 due to the
illness of the applicant.
For
some time in April 1999 the applicant was put on the list of wanted
persons due to his failure to respond to the investigator's
summonses. Between 14 June and 8 July 1999 the proceedings
were suspended due to the applicant's failure to appear for
questioning.
On
9 July 1999 the pre-trial investigation was completed and the
applicant was given access to the case file. In the course of the
investigation the police investigator interviewed ten witnesses and
obtained an expert's opinion on the question whether the applicant
had forged the victim's signature on the petition for divorce.
The
applicant commenced studying the case file on 19 July 1999. For a
certain period in August 1999 he was on a wanted list due to his
failure to appear for scheduled access to the case file.
On
20 October 1999 the judge of the Yalta Town Court (Ялтинський
міський суд)
committed the applicant for trial on charges of fraud and forcible
assertion of a private right.
The
hearing scheduled for 22 October 1999 was adjourned due to the
illness of the applicant's lawyer.
The
Yalta Town Court cancelled the hearings fixed for 17 November and 10
December 1999 on account of the victim's and witnesses' failure to
appear.
On
24 February 2000 the Prosecutor's Office of
the Autonomous Republic of Crimea (Прокуратура
Автономної
Республіки
Крим, hereafter “the POARC”)
informed the applicant that, in response to his complaint, the police
investigator who had dealt with his case at the pre-trial stage had
been reprimanded for delaying the investigation.
The
hearing scheduled for 29 March 2000 was adjourned on the applicant's
request.
The
Yalta Town Court could not hold a hearing fixed for 19 April 2000
because the judge was on mission elsewhere.
On
11 May 2000 the Yalta Town Court decided that further pre-trial
investigations were necessary and remitted the case to the Alushta
Town Prosecutor.
Between
20 and 29 June 2000 the proceedings were suspended due to the
applicant's failure to appear and the victim's temporary stay in
Germany.
On
an unknown date in June 2000 the police investigator issued a
certificate, stating that the applicant had refused to participate in
further proceedings and to provide his new address in Simferopol.
On
3 July 2000 the investigator ordered the police to establish the
whereabouts of the victim and the witnesses.
From
22 July 2000 until an unknown date in August 2000 the case file was
examined by the Alushta Town Prosecutor's Office (Прокуратура
міста Алушта).
In
the meantime, on 27 July 2000 the investigator ordered the police to
establish the whereabouts of the applicant.
On
30 August 2000 the investigator questioned the victim. On 31 August
2000 he decided to suspend the proceedings on the ground that the
victim had taken up permanent residence in Belorussia.
On
an unknown date in early October 2000 the Alushta Town Prosecutor's
Office brought disciplinary proceedings against the investigator for
unjustified delay of the proceedings.
On
10 October 2000 a new investigator was assigned to the applicant's
case. On the same date he discontinued the proceedings in respect of
the fraud charge, but continued in respect of the charge of a
forcible assertion of private right charge.
On
28 November 2000 the Prosecutor's Office of the Autonomous Republic
of Crimea (Прокуратура
Автономної
Республіки
Крим) set aside the investigator's
decision of 10 October 2000.
On
12 December 2000 the case was handed over to a new investigator. On
21 December 2000 yet another investigator was assigned to deal with
the case.
The
investigation resumed on 4 January 2001.
In
a decision of 10 January 2001 the investigator discontinued the
criminal proceedings as they became time barred.
On
23 January 2001 the Alushta Town Prosecutor's Office set aside this
decision. The proceedings resumed on 21 February 2001.
Between
15 March and 3 May 2001 the investigator suspended the proceedings
due to the fact that the case was liable for termination on the
ground of the parties' friendly reconciliation. On the latter date
the investigator decided to discontinue proceedings on the above
ground.
On
an unknown date before 9 June 2001 the Alushta Town Prosecutor's
Office set aside the investigator's decision of 3 May 2001.
On
10 June 2001 the investigator ordered the police to establish the
whereabouts of the victim.
On
20 June 2001 the investigator was informed that the victim had taken
up permanent residence in Belorussia.
From
16 June to 18 July 2001 the proceedings were suspended due to the
parties' friendly reconciliation. On the latter date the investigator
questioned a witness.
From
16 June to 20 July 2000 the investigator re-interviewed four out of
the ten witnesses, on whose evidence the bill of indictment of
21 August 1999 had been based. On 13 July 2001 he issued a
request to the Belorussian police to establish the victim's
whereabouts and to serve a summons obliging her to appear and give
evidence.
Between
20 July and 17 September 2001 the proceedings were again suspended on
the basis of the reconciliation of the parties.
On
17, 18 and 23 September 2001 the investigator questioned further
three out of the ten original witnesses.
On
8 October 2001 the police investigator referred the case to the court
with a request for termination of the criminal proceedings as the
charge had became time barred.
On
12 October 2001 the Alushta Town Prosecutor's Office retrieved the
case file from the court and ordered further investigations.
On
22 and 27 October and on 10 December 2001 the investigator questioned
the victim.
On
21 December 2001 the investigator discontinued the proceedings on the
ground of lack of evidence of the applicant's involvement in the
imputed offences.
On
11 January 2002 the Prosecutor General's Office (Генеральна
прокуратура
України) set
aside the investigator's decision of 21 December 2001 and
transmitted the case to the Prosecutor's Office of the Autonomous
Republic of Crimea for further investigations.
In
a decision of 2 February 2002 the investigator discontinued the
criminal proceedings against the applicant for lack of evidence and
lack of corpus delicti.
On
7 February 2002 the Prosecutor's Office of the Autonomous Republic of
Crimea quashed that decision on the ground that the investigator had
not followed the instructions of the Prosecutor General's Office.
On
3 April 2002 a new investigator was assigned to deal with the
case. On 5 and 9 April 2002 respectively he re-interviewed a
witness and the victim.
On
20 April 2002 the case was transferred to another investigator.
On
22 April 2002 the fresh pre-trial investigation was completed and the
applicant was given access to the case file. On 3 June 2002 the case
file together with the indictment was sent to the Yalta Town Court
for examination on the merits.
On
26 June 2002 the Yalta Town Court held a preparatory hearing. Having
found the pre-trial investigation insufficient, it decided to remit
the case back to the Alushta Town Prosecutor for further
investigations.
On
5 August 2002 a new investigator took over the case.
On
14 August 2002 the proceedings were suspended due to the victim's
failure to appear. On 11 September the Alushta Town Prosecutor's
Office set aside this decision.
On
13 September 2002 the Prosecutor's Office of the Autonomous Republic
of Crimea instituted disciplinary proceedings against the
investigator for delay of the proceedings.
On
15 and 25 September 2002 the investigator summoned the victim to give
evidence. As she had failed to appear, on 9 October 2002 the
investigator ordered the police to establish her whereabouts.
Between
10 October and 12 December 2002 the proceedings in the case were
suspended for an unknown reason. On the latter date the case was
transferred to another investigator, who re-interviewed a witness. He
further questioned the victim and the applicant on 13 and 18 December
2002 respectively.
On
24 December 2002 the applicant's criminal case was again brought
before the Yalta Town Court.
The
preparatory hearing scheduled for 21 February 2003 was cancelled due
to the applicant's and victim's failure to appear.
Hearings
were held on 12 and 17 March, 2 and 15 April, 14, 19 and 26 May and
31 July 2003.
In
a decision of 1 August 2003, at the request of the prosecutor, the
court sent the case back to the Alushta Town Prosecutor's Office for
further investigations.
The
investigations resumed on 23 October 2003. Between 5 and 17 November
2003 the case file was examined by the Alushta Town Prosecutor's
Office.
On
2 December 2003 a new investigator was assigned. From 4 to 8 December
2003 the case file was with the Alushta Town Prosecutor's Office.
On
8 December 2003 the investigator terminated the proceedings on the
ground of the Amnesty Act of 11 July 2003.
On
9 January 2004 the Deputy Prosecutor of the Autonomous Republic of
Crimea quashed that decision and discontinued the criminal
proceedings against the applicant for lack of corpus delicti.
On
17 March 2004 the latter decision was revoked by the Prosecutor
General's Office.
On
8 April 2004 the police investigator discontinued the criminal
proceedings against the applicant due to the lack of any corpus
delicti.
C. The applicant's detention on remand
On
15 December 1998 the applicant, following
his arrest, was placed
in the holding
facility at the
Alushta Town Police Department. Protesting against his allegedly
unlawful detention the applicant went on hunger strike, which
continued for a week. The applicant stated that the material
conditions of detention in that facility were gravely inadequate.
On
23 December 1998 the applicant was transferred to
Simferopol pre trial detention centre No.
15 (Сімферопольський
слідчий ізолятор,
hereafter “the SIZO”).
The
applicant alleged
before the Court
that he had
been subjected to
torture and degrading treatment
while in detention in this latter facility. He
submitted that
the conditions of
his detention had
been wholly
unsatisfactory and had
in themselves constituted torture,
since during that period he had contracted a serious illness
and lost 20 kg in
weight.
As
noted above (see paragraph 9), the applicant was released from the
SIZO on 13 January
1999.
D. Medical records
On
25 January 1999 a traumatologist from the Alushta Town Hospital
examined the applicant and found signs of recent bruising on his jaw.
On
1 February 1999 the applicant was taken into the Alushta Town
Hospital and diagnosed with acute diffuse chronic bronchitis.
On
9 February, and after 12 February 1999, the applicant was examined
and treated at the Alushta Venereology Healthcare Centre. He was
diagnosed with scabies.
According
to a certificate dated 27 July 1999 issued by the Cardiology
Healthcare Centre in Simferopol, the applicant was suffering from,
among other things, ischemic heart disease, stenocardia, obstructive
chronic bronchitis and pulmonary sclerosis.
On
3 December 1999 the applicant was examined at the Alushta Town
Hospital and found to be suffering from ischemic heart disease and
chronic bronchitis.
From
12 October 2000 the applicant was placed on the control list of the
Tuberculosis Healthcare Centre in Simferopol. According to
certificates issued by that Centre dated 23 October 2000, 18 July
2001 and 5 February 2003, the applicant received outpatient
antitubercular treatment. He was found to have an active form of
infiltrative pulmonary tuberculosis.
According
to certificates dated 17 March 2002 and 5 March 2003, issued by the
Cardiology Healthcare Centre and Simferopol Town Hospital No. 2
respectively, the applicant was still being treated for his heart
diseases, such as ischemic heart disease and stenocardia.
On
14 November 2004 the applicant died. According to the death
certificate, the cause of death was dilated cardiomyopathy.
E. Complaints about the authorities' actions
Between
1999 and 2004 the applicant lodged numerous complaints with the
prosecution authorities of various levels, alleging that the criminal
proceedings against him and his detention on remand had been unlawful
and that he had suffered form inadequate medical care when in
detention. All his complaints were dismissed.
After
the criminal proceedings against him had been finally discontinued
(see paragraph 67 above), in April 2004 the applicant sued the State
Treasury in the Kyivsky District Court of Simferopol under the Law
“on the compensation of damage caused to the citizen by
unlawful actions of bodies of inquiry, pre-trial investigation,
prosecutors and courts”.
On
25 November 2004, following the applicant's death, Ms Cherkassova
sought information from the court about the applicant's civil case.
In a letter of 22 December 2004 a judge from the Kyivsky District
Court of Simferopol informed her that, in a decision of the same day,
the proceedings had been discontinued on account of the claimant's
death and the fact that the application was a personal one that could
not be taken over in the proceedings.
THE LAW
I. PRELIMINARY OBSERVATION
The applicant died on 14 November 2004, while the case
was pending before the Court (see paragraph 2 above). It has not been
disputed that his partner and sole heir is entitled to pursue the
application on his behalf and the Court sees no reason to hold
otherwise (see, among other authorities, Horváthová
v. Slovakia, no. 74456/01, §§ 25-27, 17 May
2005).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had suffered from ill-treatment and
insufficient medical assistance whilst in detention on remand. He
referred to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Parties' submissions
The
Government maintained that the applicant had failed to indicate any
concrete facts or to produce any cogent evidence of ill-treatment.
They also pleaded non-compliance with the six-month rule envisaged in
Article 35 § 1 of the Convention on the ground that the
applicant's complaint about the allegedly inadequate medical care had
been filed more than six months after his release from the
penitentiary institutions.
The
applicant disagreed.
B. The Court's assessment
The Court notes at the outset that the applicant did
not provide any concrete details of the ill-treatment he alleged to
have suffered during his detention in the SIZO and he failed to show
that he had instituted any domestic proceedings in respect of this
complaint. In particular there is no indication that in his claim
under the Law “on the compensation of damage caused to the
citizen by unlawful actions of bodies of inquiry, pre-trial
investigation, prosecutors and courts” the applicant referred
to the medical or other conditions of his detention (see paragraph 81
above).
In
any event, the Court recalls that normally, the six-month period runs
from the final decision in the process of exhaustion of domestic
remedies. However, where no domestic remedy is available, the
six-month period runs from the act alleged to constitute a violation
of the Convention (see, among other authorities, Al Akidi v.
Bulgaria (dec.), no. 35825/97, 19 September 2000). In cases
where there is a continuing situation, the six-month period runs from
the cessation of the situation (see Koval v. Ukraine (dec.),
no. 65550/01, 30 March 2004).
Applying
the aforementioned principles to the applicant's complaints about
alleged ill-treatment and the inefficiency of the medical care
afforded to him during his detention, the Court, assuming that there
was no specific remedy to complain about prison conditions, notes
that the applicant was released on 13 January 1999, whereas the
application was submitted to the Court on 26 July 2002, that is, more
than six months later (see Khudoyorov v. Russia (dec.),
no. 6847/02, 22 February 2005).
The
Court further considers that an examination of the case does not
disclose the existence of any special circumstances which might have
interrupted or suspended the running of that period. In particular,
the applicant's petitions on this matter to the prosecution
authorities, cannot be considered effective remedies to be pursued
under Article 35 § 1 of the Convention (see Melnik v.
Ukraine, no. 72286/01, § 69, 28 March 2006).
Moreover, no circumstances exist to show that the applicant was
unable to lodge these complaints with the Court after his release
from custody on that date.
It
follows that this part of the application was introduced out of time
and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained about alleged the unfairness and excessive
length of the criminal proceedings against him. He invoked Article 6
§ 1 of the Convention, which in so far as
relevant reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. Fair hearing
The
applicant complained that the domestic courts had denied him fair
trial, in that they had refused to hear witnesses and to examine
documents he had sought to adduce.
The
Court notes that the criminal proceedings against the applicant were
eventually discontinued for lack of corpus delicti (see
paragraph 67 above). In these
circumstances, the Court considers that the applicant may not claim
to be a victim of the alleged unfairness of these proceedings (see
I.I. v. Bulgaria (dec.), no. 44082/98, 25 March
2004).
It
follows that this part of the application is manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and therefore must be rejected in accordance with Article
35 § 4.
2. Length of the proceedings
The Court notes that the applicant's complaint that
criminal proceedings against him had lasted unreasonably long is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds.
B. Merits
1. Parties' submissions
The
Government were of the view that the case was rather complex,
referring to the necessity to obtain an expert opinion on the
question whether the applicant had forged the signature of the victim
(his ex-wife) on the petition for divorce and to question ten
witnesses. The Government also pointed out that the authorities had
made efforts to expedite the examination of the case.
The
Government further observed that the applicants had contributed to
the prolongation of the proceedings by failing to respond to
summonses and refusing to provide samples for handwriting experts and
filing numerous complaints to the prosecution authorities about the
conduct of the proceedings against him. They also invoked the
victim's and witnesses' failure to appear before the investigating
authorities and the court.
The
applicant disagreed.
2. The Court's assessment
a. Period to be taken into account
The
period to be taken into consideration in the present case began with
the institution of criminal proceedings against the applicant on
9 December 1998 (see Antonenkov and Others v. Ukraine,
no. 14183/02, § 40, 22 November 2005) and lasted until
8 April 2004, when the police investigator discontinued these
proceedings. It has thus lasted for five years and four month.
b. The reasonableness of the length of
proceedings
The
Court recalls that the reasonableness of the length of the
proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down
in the Court's case-law, in particular the complexity of the case,
the applicant's conduct and the conduct of the competent authorities.
On the latter point, what is at stake for the applicant has also to
be taken into consideration (see, among many other authorities,
Kalashnikov v. Russia, no. 47095/99, § 125, ECHR
2002 VI).
The
Court finds that the investigations concerning charges of fraud and
forcible assertion of a private right were not particularly complex.
In particular, the need to obtain one expert opinion and to question
ten witnesses cannot justify the overall period of the proceedings.
The
Court notes that in the beginning of the proceedings the applicant
failed to appear for several questionings, but any delay caused by
his conduct cannot be regarded as having contributed to the
prolongation of the proceedings at issue in a decisive manner.
As
regards the delays attributable to the authorities, the Court
observes that for over four years the proceedings remained at the
preliminary investigation stage. Taking into account the fact that
the case was not legally and factually complex such a time-span
appears excessive. The Court further notes that there were lengthy
periods during which no investigation activities seem to have taken
place. Such gaps occurred, for example, between August 2000 and
February 2001, March and June 2001 and December 2001 and April 2002.
The fact that those delays were unjustified is evidenced by
disciplinary proceedings brought on three occasions against the
investigators dealing with the case (see paragraphs 20, 30 and 59
above).
It is to be noted that on many occasions the
proceedings were stayed due to problems with the summoning of the
victim and the witnesses. The Court, unlike the Government, cannot
attribute their conduct to the applicant. On the contrary,
reiterating that the duty to administer justice expeditiously is
incumbent in the first place on the competent authorities (see
Mitchell and Holloway v. the United Kingdom, no. 44808/98, §
56, 17 December 2002), it considers that the authorities'
failure to take the relevant measures to ensure the victim and the
witnesses' presence have substantially contributed to the extended
length of the proceedings in the applicant's case (see, Antonenkov
and Others, cited above, § 26, and Pekov v.
Bulgaria, no. 50358/99, § 106, 30 March 2006).
Finally,
the Court notes that there was apparently poor coordination between
the various bodies involved in the case, as evidenced by the numerous
remittals of the case from the prosecution and judicial to the
investigating authorities for additional investigations. This,
together with the frequent transfers of the case to new investigators
who had to acquaint themselves with the file was a major factor
contributing to the delay.
Having
regard to the criteria established in its case-law for assessment of
the reasonableness of the length of proceedings, the Court finds that
the length of the criminal proceedings against the applicant failed
to satisfy the reasonable time requirement of Article 6 § 1 of
the Convention.
It
follows that there has been a violation of that provision.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The applicant complained that he had had no effective
remedy in respect of his alleged ill-treatment, inadequate conditions
of detention and the excessive length the criminal proceedings
against him. The applicant referred to Article 13 of the Convention,
which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
1. Remedies in respect of the applicant's complaints
under Article 3 of the Convention
The
applicant complained that he had been denied remedies in respect of
his complaints under Article 3 of the Convention.
The
Government stated that there was no arguable claim about the alleged
ill-treatment and that in respect of allegedly insufficient medical
assistance the applicant was free to sue the SIZO in civil courts.
The
Court recalls that the applicant's substantive complaints under
Article 3 were rejected as being lodged out of time (see paragraph 91
above). Even assuming that the applicant had an arguable claim of a
violation of his rights under Article 3, his complaint made under
Article 13 must also be rejected in accordance with Article 35 §§
1 and 4 of the Convention for failure to comply with the six-month
time-limit.
2. Remedies in respect of the complaint about the
length of the proceedings
The Court notes that the applicant's complaint about
the lack of domestic remedy whereby to raise the issue of the
excessive length of the proceedings in his case is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds.
B. Merits
The
Government stated that each of the authorities' actions, which had
allegedly protracted the proceedings, could have been challenged by
the applicant before the higher prosecution authorities.
The
applicant disagreed.
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time
(see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It recalls that a remedy is “effective” if it
can be used either to expedite a decision by the courts dealing with
the case, or to provide the litigant with adequate redress for delays
that have already occurred (see Kudła, cited above, §§
157-159).
The
Government relied on the applicant's alleged right to challenge the
authorities' actions impeding the progress of the proceedings before
the higher prosecution authorities. The Court, however, considers
that the Government have failed to indicate whether and, if so how,
the applicant could obtain relief – either preventive or
compensatory – by complaining to the very instances that were
allegedly responsible for the delays (see Kobtsev v. Ukraine,
no. 7324/02, § 49, 4 April 2006). Nor could such
remedy offer adequate safeguards for an independent and impartial
review of the applicant's complaints (see Merit v. Ukraine,
no. 66561/01, §§ 62 and 63, 30 March 2004).
The
Court next notes that the applicant's complaints to the higher
prosecution authorities about the delays in the proceedings resulted
in disciplinary punishment of investigators dealing with his case.
This, however, had no effect on the speediness of the proceedings.
Nor could this remedy provide the applicant with any substantive
redress for delays (see, mutatis mutandis, Kormacheva v.
Russia, no. 53084/99, § 63, 29 January 2004).
The
Court concludes, therefore, that there has been a violation of
Article 13 of the Convention on account of the lack of an
effective and accessible remedy under domestic law for the
applicant's complaint in respect of the length of his criminal case.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Article 2 of the Convention that his life
was put at risk by gravely inadequate medical conditions in the SIZO.
The
Court notes that while it is true that after his release the
applicant had to undergo serious hospital treatment for chronic
bronchitis, ischemic heart disease, stenocardia, scabies and
tuberculosis, it has not been shown that the applicant had contracted
these diseases during his detention in the SIZO which had lasted
twenty one days.
The
Court, therefore, rejects this complaint in accordance with Article
35 § 4 of the Convention as being manifestly ill-founded within
the meaning of Article 35 § 3.
The
applicant further complained under Article 5 of the Convention that
his arrest and detention had been unlawful. The Court considers,
noting that the application was lodged with the Court on 26 July
2002, that this complaint was introduced outside the six-month
time-limit under Article 35 § 1 of the Convention (see Koval
v. Ukraine (dec.), no. 65550/01, 10 December 2002) and
must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
In
respect of pecuniary damage Ms Cherkassova claimed compensation for
the costs of the applicant's funeral in the amount of 865 Euros
(EUR). She also claimed EUR 8,300 in respect of non-pecuniary damage.
The
Government considered that the pecuniary damage claimed was not
related to the subject matter of the case and that the non pecuniary
claims were excessive.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, judging on an equitable basis, it awards the
applicant EUR 2,000 in respect of non pecuniary damage.
B. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 6 and 13
of the Convention concerning the length of the criminal proceedings
against the applicant and the lack of domestic remedies in that
respect admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
