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BALOGA v. UKRAINE - 620/05 [2010] ECHR 1295 (16 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1295.html
Cite as:
[2010] ECHR 1295
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FIFTH
SECTION
CASE OF BALOGA v. UKRAINE
(Application
no. 620/05)
JUDGMENT
STRASBOURG
16
September 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 Baloga 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,
Mirjana
Lazarova Trajkovska,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 24 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 620/05) 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 Petro Ivanovych Baloga (“the
applicant”), on 23 December 2004.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
14 May 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant, Mr Petro Ivanovych Baloga, is a Ukrainian national who was
born in 1963 and lives in Fediyivka village, Kirovograd region,
Ukraine.
At
the material time, the applicant was a district police officer.
On
25 October 2000 the local prosecutor’s office instituted
criminal proceedings against the applicant, charging him with abuse
of authority and forgery. It was alleged, in particular, that during
February and March 1999 the applicant had drawn up a number of
reports of administrative offences and forged the signatures of
imaginary offenders in order to embellish his work statistics.
However, the offenders mentioned therein did not exist.
On
27 June 2002 the Bobrynets District Court (hereinafter referred to as
“the District Court”) found that the acts imputed to the
applicant had ceased to be a danger to society. Accordingly, it ruled
that he was no longer liable and
discontinued the proceedings against him. The applicant appealed.
On
26 November 2002 the Kirovograd Regional Court of Appeal (hereinafter
referred to as “the Court of Appeal”) quashed the
decision of 27 June 2002, having noted that the lower court had
not verified whether the applicant had consented to the
discontinuation of the proceedings against him, and that it had
examined the case in the applicant’s absence. It ruled,
however, to discontinue the proceedings against the applicant.
According to the applicant’s submissions he was not provided
with a copy of that decision in due time and this therefore caused
delays in appealing in cassation against it.
From
27 November 2002 to 8 March 2004 no hearings were held.
On
9 March 2004, having allowed the applicant’s appeal in
cassation, the Supreme Court found that, contrary to the requirement
of the law, the courts in both instances had examined the case in the
applicant’s absence and that they had discontinued the
proceedings against him without his consent. Accordingly, it quashed
the ruling of 26 November 2002 and remitted the case for fresh
consideration to the Court of Appeal.
On
22 June 2004 the Court of Appeal quashed the decision of 27 June
2002 and ordered a retrial.
On
7 September and 12 November 2004 the court hearings were adjourned
owing to the applicant’s failure to attend them. The applicant
asserted in this regard that he had not been duly summoned.
On
12 November 2004 the District Court ordered the police to secure the
applicant’s attendance at the next court hearing. According to
the applicant, he was brought to the hearing on 24 November 2004.
According
to the applicant, on 25 January 2005, he was again brought by the
police to the District Court. However, he alleges that this was
without a proper court order.
According
to the Government’s submissions, the applicant failed to appear
on 8 February 2005.
On
16 February 2005 the District Court found the applicant guilty of
abuse of authority and forgery but amnestied him.
On
12 April 2005 the Court of Appeal, pointing out a number of
shortcomings of the lower court (for example, the failure to indicate
in the judgment the punishment given to the applicant, the failure to
indicate the date of the amnesty act referred to, the failure to
resolve the matter of court fees), quashed the judgment of 16
February 2005 and ordered a retrial.
The
applicant appealed in cassation. On 18 July 2005 the Supreme Court
rejected his request for leave to appeal.
Meanwhile,
on 11 and 18 May 2005 the applicant failed to appear. Owing to the
applicant’s failure to comply with the court summons, the
District Court ordered the police to secure the applicant’s
attendance at the court hearing. According to the applicant, these
orders were enforced on 25 May 2005.
On
25 May 2005 the District Court found the applicant guilty of the
aforesaid crimes and sentenced him to one year’s imprisonment.
The court also banned the applicant from holding positions in the
organs of the Ministry of the Interior. By the same judgment the
court amnestied the applicant.
On
16 August 2005 the Court of Appeal upheld the judgment of 25 May
2005.
On
25 April 2006 the Supreme Court rejected the applicant’s appeal
in cassation. However, it ruled that the applicant should be exempted
from punishment because the statutory time-limit for prosecuting him
had elapsed.
According
to the records provided by the Government the adjournments due to the
applicant’s failure to appear caused a delay of almost six
months.
THE LAW
I. 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 contested that argument.
The
period to be taken into consideration began on 25 October 2000 and
ended on 25 April 2006. It thus lasted five years and six months.
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 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) What is at stake for the
applicant has also to be taken into consideration. In this respect
the Court recalls that an accused in criminal proceedings should be
entitled to have his or her case conducted with special diligence and
Article 6 is, in criminal matters, designed to ensure that a person
who has been charged does not remain for too long in a state of
uncertainty about his or her fate (see Nakhmanovich
v. Russia, no. 55669/00, § 89,
2 March 2006).
Although
some delays could be attributed to the applicant, the Court notes
that the major delays in the case were caused by remittals of the
case. In this respect the Court reiterates that a repetitive
re-examination of the case within one set of proceedings can disclose
a serious deficiency in the domestic judicial system (see
Wierciszewska v. Poland, no. 41431/98, § 46,
25 November 2003). It also notes the extended period of
procedural inactivity from 27 November 2002 to 8 March 2004.
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
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, it 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Referring
to Article 6 § 1 of the Convention, the applicant complained
that the courts’ assessment of evidence and interpretation of
the law had been inaccurate and challenged the outcome of the
criminal proceedings against him. The applicant further complained
under Article 5 of the Convention and Article 2 of Protocol No. 4
that it was unlawful for him to be forcibly taken to the court
hearings, that he had not been duly notified about the dates of those
hearings and that, when he had been forcibly taken to the court on 25
January 2005, this had not been ordered by the court. Relying on
Article 2 of Protocol No. 7, he also submitted that he had not been
provided with a copy of the decision of 27 June 2002 and, therefore,
his right to appeal against that decision had been impaired. The
applicant also invoked this provision with regard to the refusal of
the Supreme Court of 18 July 2005 to review his case in cassation.
Having
carefully examined the applicant’s submissions in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention.
It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
III. 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 claimed 55,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
The
Government contested the claim.
The Court does not discern any
causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. As to the non-pecuniary
damage, it considers that in the circumstances of the case a mere
finding of a violation constitutes sufficient just satisfaction.
B. Costs and expenses
In
the present case the applicant failed to submit any claim; the Court
therefore makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 6 § 1
of the Convention concerning the excessive length of the proceedings
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of excessive length of the
proceedings;
Holds that the finding of
a violation constitutes sufficient just satisfaction for any
non-pecuniary damage which the applicant may have suffered;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
