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BURYAGA v. UKRAINE - 27672/03 [2010] ECHR 1126 (15 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1126.html
Cite as:
[2010] ECHR 1126
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FIFTH
SECTION
CASE OF BURYAGA v. UKRAINE
(Application
no. 27672/03)
JUDGMENT
STRASBOURG
15 July
2010
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 Buryaga v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel,
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27672/03) 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 Andrey Andreyevich
Buryaga (“the applicant”), on 18 August 2003.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
The
applicant alleged, in particular, that his detention during the
judicial proceedings was unlawful and excessively long (Article 5 §§
1 and 3), that the courts failed to consider his complaints about the
unlawfulness of his detention (Article 5 § 4), and the criminal
proceedings against him were excessively long (Article 6 § 1).
On
7 July 2009 the Court declared the application partly
inadmissible and decided to communicate the complaints under Article
5 §§ 1, 3 and 4 and Article 6 § 1 to the
Government. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1965 and lives in Krasnoselka, Odessa region,
Ukraine.
Between
1990 and 2001 the law enforcement authorities of the Odessa region
instituted thirteen sets of criminal proceedings on different
accounts of murder, rape and robberies committed by several
individuals. On 8 May 2000, in particular, the Lyubashivskiy Police
Department instituted criminal proceedings concerning the robbery of
Mr Sh.
On
19 March 2001 the police arrested the applicant on suspicion of the
aforementioned robbery of Mr Sh.
On
22 March 2001 the Lyubashivskiy District Prosecutor ordered the
applicant’s detention until 14 May 2001 − on the ground
that he might abscond.
On
8 May 2001 the prosecutor, without indicating any grounds, extended
the applicant’s detention until 14 June 2001.
On
13 June 2001 the prosecutor further extended the applicant’s
detention until 19 June 2001.
On
20 June 2001 the applicant lodged a request for release with the
prosecutor. He maintained that the authorised period of his pre-trial
detention had expired on 19 June 2001 and that he was only given
access to his case-file on 20 June 2001.
On
21 June 2001 the prosecutor rejected his request on the ground that
the applicant had been informed that the investigation had been
completed on 19 June 2001, after which he was given access to the
case file.
On
13 July 2001 the Lyubashivskiy Local Court of Odessa region rejected
the applicant’s complaint about the unlawfulness of his
detention after 19 June 2001−on the ground that the time given
to an accused for studying his case-file was not to be taken into
account. The applicant appealed to the Odessa Regional Court of
Appeal but to no avail.
On
6 August 2001 the head of the Lyubashivskiy Police Department
rejected the applicant’s request for his immediate release on
the ground that the time given to an accused for studying a case-file
was not to be taken into account.
On
5 November 2001 the Ananiyvskiy Court held the committal hearing. The
court joined the proceedings in the criminal case concerning the
robbery of Mr Sh. with those of several other cases (given that the
applicant’s co-defendants were involved in other cases too (see
paragraph 6 above)). The applicant and six others were committed for
trial. The court rejected the applicant’s complaint about the
unlawfulness of his detention having found no irregularities therein.
It also maintained his detention without giving any grounds or fixing
any time limit.
On
15 November and 19 December 2001 the court held hearings in the case.
On
20 December 2001 the Ananiyvskiy Court rejected the applicant’s
request for release on the grounds that he had previous convictions,
that he had committed a serious crime and that he might abscond and
interfere with the course of justice. The hearing was then adjourned
owing to the non-appearance of one of the lawyers.
On
7 January 2002 the applicant submitted a complaint about the
unlawfulness of his detention with the Ananiyvskiy Court.
On
21 January 2002 the Ananiyvskiy Court rejected the applicant’s
complaint referring to its previous findings during the committal
hearings (see paragraph 15 above). The hearing was then adjourned
owing to the non-appearance of the aggrieved parties and one of the
accused.
On
18 February 2002 the applicant lodged an application for release with
the court. It was rejected the same day. The hearing was then
adjourned owing to the non-appearance of one of the aggrieved
parties.
On
5 March 2002 the hearing was adjourned due to the failure to bring
the accused to the court.
On
3 and 4 April 2002 the court held hearings in the case.
On
16 May 2002 the court remitted the case against the applicant and
several other individuals for an additional investigation. It also
maintained the applicant’s detention without indicating any
reasons or fixing any time-limit.
On
8 September 2002 the applicant complained of the unlawfulness of his
detention to the prosecutor. By a decision of the same day, the
Ananiyvskiy Prosecutor’s Office rejected this complaint. The
prosecutor noted that a two-month period for the applicant’s
detention had expired on 20 August 2002 and by that time the
additional investigation had already been completed.
On
20 May 2003 the criminal case against the applicant and other persons
was transferred to the Lyubashivskiy Court.
On
26 May 2003 the Lyubashivskiy Court held a committal hearing at
which, among other things, the applicant’s detention was
maintained without an indication of any grounds or any time-limit
fixed for its duration.
On
18 and 23 June 2003 the applicant lodged applications for release
with the court. On these dates the hearings were adjourned owing to
the non-appearance of the lawyer of one of the co-defendants.
On
26 June 2003 the court held a hearing and remitted the case for
additional investigation. It also rejected the applicant’s
application for release and maintained his detention − noting
that it had no grounds to replace it by another preventive measure.
On
18 July 2003 the applicant complained to the prosecutor of the
unlawfulness of his detention.
On
25 July 2003 the prosecutor rejected his complaint with the same
reasoning as provided in the decision of 8 September 2002 (see
paragraph 24 above).
On
19 September 2003 the Lyubashivskiy Court held a committal hearing
and decided, inter alia, to maintain the applicant’s
detention without indicating any reasons or fixing any time-limit.
On
21 October 2003 the court held a hearing in the case.
On
28 January 2004 the hearing was adjourned owing to the non-appearance
of the prosecutor.
On
18 February 2004 the court held a hearing.
On
6 July 2004 the case was transferred to the Kotovsk Local Court of
Odessa region.
On
17, 18 and 19 August 2004 the Kotovsk Court held hearings in the
case. On the last-mentioned date, the applicant lodged an application
for release with the Kotovsk Court stating that he had been detained
for a long period of time, that he had been arrested on insufficient
grounds and that he had no intention of absconding. The court
rejected the application on the ground that the applicant was
suspected of committing a serious crime and that he had previous
criminal convictions.
On
28 October 2004 the hearing was adjourned owing to the non-appearance
of two of the co-defendants.
On
25 November, 1, 6 and 8 December 2004 the court held hearings in the
case.
On
13 December 2004 the Kotovsk Local Court of Odessa region found the
applicant and six others guilty of several different crimes; in
particular, the applicant was found guilty of robbery and sentenced
to five years’ imprisonment. The court also rejected the
applicant’s application for release.
On
23 March 2005 the applicant made a request for his release, which was
rejected at the court’s hearing on 29 June 2005 because the
applicant had already been sentenced.
On
17 January 2006 the Odessa Court of Appeal, in the applicant’s
presence, upheld the decision of the first-instance court.
On
18 March 2006 the applicant finished serving his sentence.
On
10 July 2006 the applicant appealed in cassation.
On
21 August 2006 the judge of the Supreme Court returned the
applicant’s cassation appeal without consideration due to
non-compliance with procedural requirements and gave him a month to
correct the shortcomings.
On
27 September 2006 the applicant lodged his new cassation appeal.
On
2 November 2006 the Supreme Court rejected the applicant’s
cassation appeal as being submitted too late.
II. RELEVANT DOMESTIC LAW
Relevant
domestic law is summarised in the cases of Shalimov v. Ukraine
(no. 20808/02, § 39-41, 4 March 2010); Solovey and Zozulya
v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27
November 2008); and Kozinets v. Ukraine (no. 75520/01,
§§ 39-42, 6 December 2007).
THE LAW
I. SCOPE OF THE CASE
In
his reply to the Government’s observations, the applicant
submitted new complaints under Article 5 § 3 of the Convention,
alleging that that he had not been brought immediately before the
prosecutor. He also complained that his detention was unlawful not
only prior to his conviction but also after it, making, in substance,
a new complaint under Article 5 § 1 (a) of the Convention as to
the period from 13 December 2004 (the date of his conviction) to
18 March 2006 (the date of his release). He further referred to
Article 7 of the Convention without any specification. The Court
notes that these new, belated complaints are not an elaboration on
the applicant’s original complaints on which the parties have
already commented. The Court considers, therefore, that it is not
appropriate now to take these matters up separately (see, mutatis
mutandis, Piryanik v. Ukraine, no. 75788/01, § 20,
19 April 2005).
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
The
applicant complained that his detention had been unlawful and
unreasonably long and that he had had no effective remedy for
reviewing the lawfulness of his detention. He relied on Article 5 §§
1, 3 and 4 of the Convention, which reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.”
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
A. Admissibility
The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Lawfulness of the detention under Article 5 § 1
(c)
1. Parties’ submissions
The
applicant maintained that he had been arrested in violation of
domestic law. He considered that the whole period of his detention
had been unlawful. He maintained that he had been given case-file
materials to study one day after his authorised period of detention
had expired but the domestic authorities had failed to recognise
this. He further considered that the domestic courts were not allowed
to maintain his detention, which had ceased to be lawful on 19 June
2001.
The
Government maintained that the grounds of the applicant’s
pre trial detention were clearly defined and the law itself was
foreseeable in its application, so that it met the standard of
“lawfulness” set by the Convention. They contended that
the applicant had been detained on the ground of suspicion of
committing a serious crime and also with the intention of ensuring
his participation in the proceedings. Furthermore, the periods of the
applicant’s detention covered by the court decisions protected
him from arbitrariness − which protection is implicit in the
meaning of “lawfulness”, as regards detention, as
provided in Article 5 of the Convention.
2. Court’s assessment
(a) General principles enshrined in the
case-law
The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and lay down an obligation
to conform to the substantive and procedural rules thereof. While it
is for the national authorities, notably the courts, to interpret and
apply domestic law, the Court may review whether national law has
been observed for the purposes of this Convention provision (see,
among other authorities, Assanidze v. Georgia [GC],
no. 71503/01, § 171, ECHR 2004 II).
However,
the “lawfulness” of detention under domestic law is the
primary, but not always the decisive element. The Court must, in
addition, be satisfied that the detention, during the period under
consideration, was compatible with the purpose of Article 5 §
1 of the Convention, which is to prevent persons from being
deprived of their liberty in an arbitrary manner. Moreover, the Court
must ascertain whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied
therein (see Winterwerp v. the Netherlands, 24 October
1979, § 45, Series A no. 33).
(b) Application to the present case
The
Court notes that the applicant’s pre-trial detention falls into
three categories: the period when the applicant’s custody was
covered by the detention orders issued by the prosecutors; the period
when the applicant’s detention was not covered by any decision;
and the period when his detention was covered by the court decisions.
(i) Applicant’s detention under
prosecutors’ orders
The
Court notes that the applicant’s detention was initially
ordered by the Lyubashivskiy District Prosecutor on 22 March 2001.
The relevant period covered by this decision of the prosecutor was
between 19 March and 14 May 2001. Detention under this procedure was
covered by a reservation to Article 5 § 1 (c) of the
Convention that had been entered by Ukraine in accordance with
Article 57 of the Convention with the intention of keeping in place
the procedure governing arrest and detention in force at the material
time until 29 June 2001. The Court refers to its findings in the
Nevmerzhitsky case that under the terms of the above
reservation, Ukraine was under no obligation, under the Convention,
to guarantee that the initial arrest and detention of persons such as
the applicants should be ordered by a judge. The Court also found in
that case, however, that the issue of continued detention was not
covered by the above reservation (see Nevmerzhitsky v. Ukraine,
no. 54825/00, §§ 112-114, ECHR 2005 II).
The
Court notes that a further period of the applicant’s detention
was also covered by the decisions of a prosecutor. This was the
period between 14 May and 19 June 2001.
The
Court notes that there were no court decisions taken regarding the
applicant’s continued detention during the above period. The
decisions to extend the applicant’s detention were taken by
prosecutors, who were a party to the proceedings, and who cannot, in
principle, be regarded as “independent officers authorised by
law to exercise judicial power” (see Merit v. Ukraine,
no. 66561/01, § 63, 30 March 2004). In these circumstances,
the Court concludes that the applicant’s continued detention,
as ordered by the prosecutors, was not lawful within the meaning of
Article 5 § 1 (c) of the Convention.
(ii) Applicant’s detention not
covered by any decision
The
Court notes that no domestic decision was required to validate a
period of detention during which a person had been given access to
the case file, in accordance with Article 156 of the Code of Criminal
Procedure as then in force. Furthermore, the periods of transmittal
and transfer of the case from the prosecutor to the court and back
again were often not covered by any decision either. In the present
case, such period fell between 19 June 2001 and 5 November
2001.
The
Court notes that relevant domestic law regulates procedural steps
concerning the study of the case-file, the committal proceedings and
transmittals of the case for further investigation, but it does not
set clear rules as to by which authority, on which grounds and for
which term the detention of the accused can be extended (see Solovey
and Zozulya v. Ukraine, cited above, § 72). It
has held, on many occasions, that the practice of keeping defendants
in detention without a specific legal basis or clear rules governing
their situation – with the result that they may be deprived of
their liberty for an unlimited period without judicial authorisation
– is incompatible with the principles of legal certainty and
protection from arbitrariness, which are common threads throughout
the Convention and the rule of law (see Korchuganova v. Russia,
no. 75039/01, § 57, 8 June 2006; Nakhmanovich v. Russia,
no. 55669/00, §§ 67-68, 2 March 2006; and
Khudoyorov v. Russia, no. 6847/02, §§ 146-148,
ECHR 2005 X).
Therefore,
the periods of the applicant’s detention without any decision
ordering such detention were not in accordance with Article 5 §
1 of the Convention.
(iii) Lawfulness of the applicant’s
detention under the court orders
The
Court observes that under Article 242 of the Code of Criminal
Procedure, a domestic court, when committing a person for trial, must
check whether the preventive measure that was selected at the
investigation stage is appropriate. Reasons for the preventive
measure are required from the court only when it decides to change
the measure (Article 244 of the CCP). It does not appear that the
court is required to give reasons for continuing the accused’s
detention or to fix any time-limit when maintaining the detention
(see Solovey and Zozulya v. Ukraine, cited above, §§
43, 74-76).
The
Court considers that the absence of any precise provisions laying
down whether – and if so, under what conditions –
detention ordered for a limited period at the investigation stage
could properly be extended at the stage of court proceedings does not
satisfy the test of “foreseeability” of a “law”
for the purposes of Article 5 § 1 of the Convention (see
Baranowski v. Poland, no. 28358/95, § 55, ECHR
2000-III, and Kawka v. Poland, no. 25874/94, §
51, 9 January 2001).
The
Court observes that, although the domestic courts upheld the
pre-trial detention measure in respect of the applicant on 5 November
2001, 16 May 2002, and 26 May, 26 June and 19 September 2003, they
did not set a time-limit for his continued detention and sometimes
did not give any reasons for their decisions (see paragraphs 15, 20,
23, 26 and 28 above). This left the applicant in a state of
uncertainty as to the grounds for his detention. In this connection,
the Court reiterates that the absence of any grounds given by the
judicial authorities for their decisions authorising detention for a
prolonged period of time is incompatible with the principle of
protection from arbitrariness enshrined in Article 5 § 1 (see
Nakhmanovich, cited above, §§ 70-71, and Stašaitis
v. Lithuania, no. 47679/99, § 67, 21 March 2002).
In these circumstances, the Court considers that the decisions
referred to above did not afford the applicant the adequate
protection from arbitrariness which is an intrinsic element of the
“lawfulness” of detention within the meaning of Article
5 § 1 of the Convention, and that, therefore, the
applicant’s detention on remand during the periods covered by
the judicial decisions was likewise not in accordance with Article 5
§ 1 of the Convention.
(c) Conclusion
The
Court concludes that there has been a violation of Article 5 § 1
of the Convention in the above respects.
C. Article 5 § 3 of the Convention
The
applicant maintained that his detention had been unreasonably long.
The
Government maintained that the length of the applicant’s
pre-trial detention, which constituted three years, eight months and
twenty-four days, was justified by the complexity of the case and the
number of investigative actions that were necessary. They further
maintained that there were relevant and sufficient grounds for
holding the applicant in custody and that the authorities, in dealing
with the applicant’s case, had displayed the necessary
diligence required under Article 5 § 3 of the Convention.
The
Court recalls that the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. This must be
assessed in each case according to its special features, the reasons
given in the domestic decisions and the well-documented facts
mentioned by the applicant in his applications for release. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty (see, among others, Labita v. Italy
[GC], no. 26772/95, § 153, ECHR 2000 IV).
The
Court notes that the seriousness of the charges against the applicant
and the risk of his absconding and interfering with the course of
justice had been put forward in the initial order on the applicant’s
detention (see paragraph 8 above). Thereafter, the prosecutors and
the courts put forward the same grounds or did not put forward any
grounds whatsoever for maintaining the applicant’s detention
but simply stated that the previously chosen preventive measure was
correct. However, Article 5 § 3 requires that after a
certain lapse of time, the persistence of a reasonable suspicion does
not in itself justify the deprivation of liberty, and the judicial
authorities should give other grounds for continued detention (see
Jabłoński v. Poland, no. 33492/96, §
80, 21 December 2000, and I.A. v. France, no. 28213/95,
§ 102, Reports of Judgments and Decisions 1998-VII).
Those grounds, moreover, should be expressly mentioned by the
domestic courts (see Iłowiecki v. Poland, no. 27504/95, §
61, 4 October 2001). No such reasons were given by the courts in
the present case. Furthermore, at no stage did the domestic courts
consider any alternative preventive measures to detention on remand,
and by relying essentially on the gravity of the charges, the
authorities extended the applicant’s detention on grounds which
cannot be regarded as “relevant and sufficient”.
The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 5 § 3 of the
Convention.
D. Article 5 § 4 of the Convention
The
applicant considered that the domestic courts failed to recognise the
unlawfulness of his detention.
In
the Government’s opinion, the applicant had, at his disposal.
an effective procedure for reviewing the lawfulness of his pre-trial
detention. They further noted that such lawfulness had been reviewed
by the courts on many occasions, including at the applicant’s
applications for release on 13 July, 5 November and 20 December
2001, on 21 January, 18 February and 16 May 2002, on 26 May, 26 June
and 19 September 2003, on 28 January 2004, 19 August and 13
December 2004 and on 29 June 2005 (see paragraphs 13, 15, 17, 19, 20,
23, 26, 28, 31, 33, 36, 39, 40 above).
The
Court reiterates that Article 5 § 4 of the Convention entitles
arrested or detained persons to a review of the procedural and
substantive conditions which are essential for the “lawfulness”,
in Convention terms, of their deprivation of liberty. This means that
the competent court has to examine not only compliance with the
procedural requirements of domestic law but also the reasonableness
of the suspicion underpinning the arrest, and the legitimacy of the
purpose pursued by the arrest and subsequent detention (see
Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR
2002 II).
The
Court notes that in the circumstances of the present case the
lawfulness of the applicant’s detention was reviewed by the
domestic courts on many occasions. However, the respective court
decisions do not fully satisfy the requirements of Article 5 §
4− being confined in their reasoning to mere reiteration of the
standard set of grounds for the applicant’s detention without
any examination of the plausibility of such grounds under the
applicant’s particular circumstances (see, mutatis mutandis,
Belevitskiy v. Russia, no. 72967/01, §§ 111-112, 1
March 2007).
The
Court considers that there has accordingly been a violation of
Article 5 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government maintained that the period to be taken into consideration
began on 19 March 2001, when the applicant was arrested, and ended on
17 July 2006, when the statutory time-limit for lodging the cassation
appeal had expired. In their opinion, the proceedings therefore
lasted five years and almost four months for two levels of
jurisdiction − a length of time which they considered
reasonable.
The
applicant made no comment on this issue.
The
Court notes that the applicant did lodge a cassation appeal within
the time-limit envisaged by the law - on 10 July 2006, but failed to
meet the procedural formalities and then to re-lodge his appeal
within the one-month time-limit fixed by the Supreme Court – by
21 September 2006. His appeal was ultimately rejected on 2 November
2006. The Court considers that the ultimate failure of the applicant
to lodge a cassation appeal in compliance with the procedural
formalities does not exclude this part of the proceedings for the
purpose of calculation of its length. Therefore, the Court considers
that the proceedings lasted for more than five years and seven months
for three levels of jurisdiction.
A. Admissibility
The
Court notes that this complaint 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. It must
therefore be declared admissible.
B. Merits
The
applicant considered the length of the proceedings excessive. He
noted that there were important periods of inactivity from August
2002 to March 2003 and from March 2004 to August 2004 when the case
had been transferred from one court to another and no hearings had
been held.
The
Government considered that the proceedings had been conducted with
due diligence and the delays were caused by the motions of the
parties, including the applicant, the remittals of the case for a
fresh consideration, which had been required to ensure fairness of
the proceedings, and by the adjournments of the hearings due to the
failure of parties to appear.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II). It further notes
that an accused in criminal proceedings should be entitled to have
his case conducted with special diligence, especially where he is
kept in custody (see, among other authorities, Yurtayev v.
Ukraine, no. 11336/02, § 37, 31 January 2006;
Nakhmanovich v. Russia, cited above, § 89; and
Ivanov v. Ukraine, no. 15007/02, § 71,
7 December 2006).
The
Court appreciates that the criminal proceedings at issue, which
concerned multiple defendants, did involve evidential and procedural
aspects of a certain complexity.
On
the other hand, the Court observes that the delays in resolving the
matter have been primarily due to the several remittals of the case
for reinvestigation and the rectification of procedural errors.
Furthermore, the applicant was not responsible for any adjournment of
the hearings.
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that, in the instant case, the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
IV. 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
The
applicant did not make any claims for damage. Accordingly, the Court
considers that there is no call to award him any sum on that account.
B. Costs and expenses
The
applicant claimed UAH 1 350 (EUR 125) for the translation of
correspondence from the Court.
The
Government noted that this claim was not supported by any documents
and the expenses were not necessary. They propose to reject this
claim.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have actually and necessarily been incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the claimed amount in full.
C. 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 remainder of the application
admissible;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that there has been a violation of Article
6 § 1 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 125 (one
hundred and twenty-five euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses, to be converted
into Ukrainian hryvnias at the rate applicable at the date of
settlement;
(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;
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
