European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 12205/08
Mykola Pavlovych USATYY
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 29 November 2011 as a Committee composed of:

Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 14 February 2008,

Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mykola Pavlovych Usatyy, is a Ukrainian national who was born in 1948 and lives in Poltava. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.

On 29 September 1997 the police instituted criminal proceedings against the applicant on suspicion of misappropriation of funds.

From 9 August 1999 to 7 November 2001 the applicant was kept in pre-trial detention.

Following several reconsiderations of the case, on 7 April 2011 the Vinnytsya Town Court acquitted the applicant. On 23 June 2011 the Vinnytsya Regional Court of Appeal upheld that judgment. No appeal was lodged against the latter decision.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him. He also complained under Article 5 § 1 (c) of the Convention that his pre-trial detention was unlawful. The applicant complained under Article 6 § 3 (d) of the Convention that the courts had refused to hear witnesses on his behalf. The applicant also complained under Articles 10, 11, 13 and 14 of the Convention that the criminal case against him had been falsified because of his political convictions and that he was being persecuted on that ground. The applicant finally complained of a violation of Article 4 of Protocol No. 7 on account of the fact that in the course of the proceedings the prosecutors appealed against his acquittal.

THE LAW

A.  Length of proceedings complaint

By letter dated 29 April 2011, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the complaint. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of Ukraine acknowledge the excessive duration of the consideration of the applicant’s case before the national authorities.

I, Valeria Lutkovska, the Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay ex gratia 6,100 (six thousand one hundred) euros to Mr Mykola Pavlovych Usatyy.

The Government of Ukraine therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c ) of the Convention.

This sum ex gratia is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable, and converted into the national currency of the respondent State at the rate applicable at the date of settlement. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this amount within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

This payment will constitute the final resolution of the case.”

The applicant objected to the Government’s declaration.

The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also reiterates that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).

Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the matter, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, this part of the application should be struck out of the list.

B.  Remaining complaints

Having carefully examined the remainder of the application in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration in respect of the excessive length of the civil proceedings;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Stephen Phillips Mark Villiger
Deputy Registrar President