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NIKIFORENKO v. UKRAINE - 14613/03 [2010] ECHR 182 (18 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/182.html
Cite as:
[2010] ECHR 182
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FIFTH
SECTION
CASE OF NIKIFORENKO v. UKRAINE
(Application
no. 14613/03)
JUDGMENT
STRASBOURG
18
February 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 Nikiforenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
judges,
Mykhaylo Buromenskiy,
ad hoc
judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 14613/03) 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, Ms Lyudmila Vasilyevna
Nikiforenko (“the applicant”), on 21 February 2003.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yu. Zaytsev, from the Ministry of Justice.
On
2 March 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was 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 1945 and lives in Chervonopartizansk.
On
11 November 1997 the applicant broke into the apartment of Ms M.
and took a bicycle which had belonged to her ex-husband, who had died
three days earlier.
On
receiving a complaint from Ms M., on 18 November 1997 the
Sverdlovskiy District Prosecutor’s Office (“the SDPO”)
instituted criminal proceedings against the applicant for burglary
and theft.
In
November and December 1997 the investigation was suspended several
times because of the applicant’s illness.
On
5 January 1998 the applicant was charged with burglary and theft. The
same day she was placed under an obligation not to abscond.
In
January, April, May and August 1998 the investigation was suspended
several times because of the applicant’s illness.
In
November 1998 the investigation was completed and the criminal case
against the applicant was referred to the Sverdlovskiy Local Court,
Lugansk Region (“the Sverdlovskiy Court”).
On
25 December 1998 the Sverdlovskiy Court remitted the case for
additional investigation.
On
20 September 1999 the SDPO reclassified the applicant’s actions
and charged her with burglary and robbery.
On
3 November 1999 the SDPO completed the additional investigation and
referred the case to the court.
On
2 December 2000 the Sverdlovskiy Court convicted the applicant, but
on 28 March 2000 the Lugansk Regional Court quashed the judgment and
remitted the case for fresh investigation.
On
15 June 2000 the SDPO reclassified the applicant’s actions from
robbery to forcible assertion of right.
On
12 July 2000 the applicant was charged with robbery.
On
5 August 2000 the charges against the applicant were changed back to
forcible assertion of right. The SDPO terminated the criminal case
against the applicant because further prosecution was time-barred.
On
20 September 2000 the Lugansk Regional Prosecutor’s Office
(“the LRPO”) quashed the decision of 5 August 2000 and
took over the investigation into the case.
On
21 December 2000 the investigation was completed and on 29 December
2000 the criminal case was transferred to the court.
On
26 March 2002 the court remitted the case for further investigation.
On
10 November 2003 the investigator changed the charges against the
applicant to concealment of a crime.
In
May 2004 the investigation was completed and the case was referred to
the court.
On
17 June 2004 the court remitted the case for further investigation.
On
17 August 2004 the Lugansk Regional Court of Appeal upheld the
decision of 17 June 2004.
In
October 2004 the charges against the applicant were changed to
forcible assertion of right. The investigation was completed and the
case was referred to the court.
In
November-December 2004 the court held three hearings.
On
28 December 2004, 26 January and 16 February 2005 the hearings were
adjourned because of the applicant’s absence.
In
2004 Ms M., the aggrieved party, died.
On
11 April 2005 the Rovensky Local Court closed the criminal case
against the applicant as time-barred for further prosecution. On 17
June 2005 the Lugansk Court of Appeal quashed this decision and
remitted the case for fresh consideration.
Between
September and November 2005 court hearings were postponed four times
due to the applicant’s failure to appear.
On
27 December 2005 the court remitted the case for further
investigation.
On
30 June 2006 the investigation was completed and the case was
referred to the court.
Between
July and November 2006 court hearings were postponed four times due
to the applicant’s failure to appear.
On
14 May 2007 the case was remitted for further investigation.
On
12 July 2007 the investigation was completed and the case was
referred to the court.
On
6 September 2007, 4 June 2008 and 12 February 2009 the court remitted
the case for further investigation.
On
22 October 2008 the investigator cancelled the applicant’s
obligation not to abscond. During the period when the applicant had
been under the obligation not to abscond she had been allowed several
times to go abroad to visit her relatives and on several occasions
she had done so without permission. On one occasion, the applicant
had not been permitted to leave her place of residence.
On
21 March 2009 the prosecutor terminated the criminal proceedings
against the applicant for lack of proof of crime.
II. RELEVANT DOMESTIC LAW
The
text of Articles 148, 149 and 150 of the Code of Criminal Procedure
of 1960, which are the general rules on preventive measures, is set
out in Merit v. Ukraine (no. 66561/01, judgment of
30 March 2004).
According
to Article 151 of the Code, an undertaking not to abscond consists of
an obligation by a suspect or an accused not to leave his or her
place of residence or temporary address without the permission of an
investigator. In the event of a breach of such a written undertaking,
a stricter measure of restraint may be applied.
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. According to the Government the
delays caused by the applicant’s conduct constituted almost ten
months during the court proceedings and several more months during
the investigation stage.
The
period to be taken into consideration began on 18 November 1997 and
ended on 21 March 2009. It thus lasted eleven years, four months and
four days at two 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
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)
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, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement,
even excluding the period of delay attributable to the applicant from
the overall length of the proceedings.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that in Ukraine there was no court to
which application could be made to complain of excessive length of
proceedings. She relied on Article 13 of the Convention, which reads
as follows:
“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.”
The
Government contested that argument.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
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 further refers to its finding
in the Merit case about the lack of an effective and
accessible remedy under domestic law for complaints in respect of the
length of criminal proceedings (see Merit v. Ukraine, cited
above, §§ 78-79).
Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of a
remedy under domestic law whereby, the applicant could have obtained
a ruling upholding her right to have her case heard within a
reasonable time, as set forth in Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4 TO
THE CONVENTION
The
applicant also complained about the lengthy restriction on her
freedom of movement as a result of the undertaking not to abscond.
She relied on Article 2 of Protocol No. 4, which, in so far as
relevant, reads as follows:
“1. Everyone lawfully within the territory of a
State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence....
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
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
It
is not in dispute between the parties that the obligation not to
abscond constituted an interference with the applicant’s
freedom of movement. Furthermore, as the Court had previously found
in cases raising similar issues, in the context of criminal
proceedings in Ukraine such interference with a right of a criminal
suspect or an accused is in accordance with law and, in principle,
pursues a legitimate aim (see, among other authorities, Ivanov v.
Ukraine, no. 15007/02, §§ 87-89, 7 December 2006). It
remains to be seen whether such interference was “necessary in
a democratic society”.
The
test of “necessity in a democratic society” requires the
Court to determine whether the interference complained of was
“proportionate to the legitimate aims pursued” (see,
mutatis mutandis, Kyprianou v. Cyprus [GC],
no. 73797/01, §§ 170-171, ECHR 2005-...). As regards
the proportionality of the interference, the Court had particular
regard to the duration of the measure in question.
The
applicant was under obligation not to abscond from 5 January 1998
until 22 October 2008, that is for ten years, nine months and
nineteen days. This had restricted her from leaving her place of
residence without permission throughout that time (see paragraph 40
above).
The
Court ruled on the compatibility with Article 2 of Protocol No.
4 of an obligation not to leave one’s place of residence in a
series of cases against Italy, including the case of Luordo (see
Luordo v. Italy, no. 32190/96, § 96, ECHR
2003-IX). In this case the Court found such an obligation, imposed on
the applicant for the duration of bankruptcy proceedings,
disproportionate because of their length, in that case fourteen years
and eight months, even though there had been no indication that the
applicant wished to leave his place of residence or that such
permission had ever been refused. However, in the Antonenkov and
Others case (see, Antonenkov and Others v. Ukraine, no.
14183/02, §§ 59-67, 22 November 2005), where the
length of the impugned restriction within the course of criminal
proceedings was four years and ten months, the Court found no
violation of Article 2 of Protocol No. 4. Also, in the Fedorov
and Fedorova case (see Fedorov and Fedorova v. Russia,
cited above, §§ 32 47), where an obligation not
to leave their place of residence was imposed on the applicants for
four years and three months and four years and six months, the Court
found that in the circumstances of the case the restriction on the
applicants’ freedom of movement was not disproportionate.
In
the Court’s view, the present application should be
distinguished from the Antonenkov and Others and Fedorov
and Fedorova cases. The Court firstly notes that the length of
the restriction was significantly longer than in the two
aforementioned cases, and its mere duration could be sufficient to
conclude that it was disproportionate. Furthermore, the lengthy
interference occurred in the context of prosecuting a fairly trivial
offence.
In
view of the above considerations, the Court reaches the conclusion
that a fair balance between the demands of the general interest and
the applicant’s rights was not achieved. Accordingly, there has
been a violation of Article 2 of Protocol No. 4 to the
Convention.
IV. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Article 6 of the Convention that there
had been procedural violations during the criminal proceedings
against her.
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 §§ 1, 3 and
4 of the Convention.
V. 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 100,000 euros (EUR) in respect of non pecuniary
damage.
The
Government considered this amount excessive and unsubstantiated.
The Court considers that the applicant
suffered non-pecuniary damage which cannot be compensated by the mere
finding
of a violation of her Convention rights.
Having regard to the circumstances of the case and ruling on an
equitable basis, as required by Article 41, it awards her EUR 5,200
in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant made no claims under this head. The Court therefore makes
no award.
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 complaint concerning length of the
proceedings and lack of effective remedies in this respect, as well
as interference with freedom of movement admissible and the remainder
of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of length of the proceedings;
Holds that there has been a violation of Article
13 of the Convention;
Holds that there has been a violation of Article
2 of Protocol No. 4 to the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,200 (five
thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
