FIFTH SECTION

CASE OF LYUBART-SANGUSHKO v. UKRAINE

(Application no. 25851/06)

JUDGMENT

STRASBOURG

20 December 2011

This judgment is final but it may be subject to editorial revision.

In the case of Lyubart-Sangushko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mark Villiger, President,
	Elisabet Fura,
	Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 29 November 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 25851/06) 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 Yevgeniy Aleksandrovich Lyubart-Sangushko (“the applicant”), on 5 June 2006.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev, of the Ministry of Justice.
3.  On 16 March 2010 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1957 and lives in Kharkiv.
5.  On 2 September 1999 the police instituted criminal proceedings against him on suspicion of unlawful making and storage of a firearm. Throughout the major part of the proceedings the applicant was on a written undertaking not to abscond.
6.  On 4 October 1999 the case was transferred to the Zhovtnevyy District Court of Kharkiv (“District Court”), which on 21 February 2000 delivered a judgment. On 21 March 2000 the Kharkiv Regional Court of Appeal (“Court of Appeal”) quashed it and remitted the case for additional investigations.
7.  Following the completion of additional investigations, on 4 September 2000 the case was referred to the District Court, which on 25 November 2005 found the applicant guilty as charged, sentenced him to three years of imprisonment and exempted him from the sentence as the charges against him became time-barred. On 25 February 2006 the Court of Appeal upheld the above judgment.
8.  On 22 June 2006 and 22 February 2007 respectively, the Supreme Court rejected, as unsubstantiated, the applicant’s and the prosecutor’s appeals in cassation against the above decisions.
9.  According to the Government, in the course of the proceedings the applicant was three times found guilty of contempt of court and repeatedly challenged the judges and the court’s jurisdiction, which entailed adjournments of the hearings and an eight-month delay in the proceedings. Eight hearings were adjourned due to the applicant’s failure to appear and seven hearings due to his and the witnesses’ failure to appear. The applicant disagreed stating that he had not been duly informed of those hearings. Fifteen hearings were adjourned due to the witnesses’ or expert’s failure to appear, absence of the judges or upon the prosecutor’s request. On several occasions the courts applied compulsory summonses on the witnesses failing to appear. Two expert examinations were ordered and lasted for about three months.
THE LAW
I.  SCOPE OF THE CASE
10.  Following the Court’s partial admissibility decision of 16 March 2010, the applicant made further submissions, in which he reiterated the complaints he had raised when lodging the application.
11.  In its partial admissibility decision, the Court adjourned the examination of the applicant’s complaint about the length of the criminal proceedings against him and declared the remaining complaints inadmissible. Therefore, the scope of the case before the Court is now limited to the length-of-proceedings complaint.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12.  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...”
13.  The Government contested that argument stating that the applicant had contributed to the length of the proceedings.
14.  The period to be taken into consideration began on 2 September 1999 and ended on 22 February 2007. It thus lasted seven years five months and twenty days for three levels of jurisdiction.
A.  Admissibility
15.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
16.  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 its complexity, 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 also recalls that an accused in criminal proceedings should be entitled to have his case conducted with special diligence, having a particular regard to any restrictions on liberty imposed pending the conclusion of the proceedings (see, for instance, Doroshenko v. Ukraine, no. 1328/04, § 41, 26 May 2011).
17.  Turning to the circumstances of the case, the Court considers that the complexity of the case and the conduct of the applicant, who somewhat contributed to the overall length of the proceedings (see paragraph 9 above), alone cannot explain that length. At the same time, it notes the lengthy period of examination of the case by the District Court (see paragraph 7 above) and the numerous adjournments of the hearings due to witnesses’ failure to appear (see paragraph 9 above). In the latter respect, the Court considers that, even though the courts have several times applied compulsory summonses on the witnesses failing to appear, they have also had at their disposal other effective mechanisms to ensure the witnesses’ presence, including administrative penalties (see Kobtsev v. Ukraine, no. 7324/02, § 31, 4 April 2006). It was not suggested by the Government that the courts have ever considered applying them. Nor have the majority of the summonses seemed to have any effect (see Kobtsev v. Ukraine, cited above, § 71). The Court thus concludes that the main responsibility for the length of the proceedings rested with the State.
18.  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).
19.  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 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
20.  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, costs and expenses
21.  The applicant claimed a global sum of 107,573 euros (EUR) in respect of non-pecuniary damage and postal expenses. He did not specify whether any postal expenses related to the proceedings before the Court.
22.  The Government contested the claims for non-pecuniary damage and left the claim for postal expenses to the Court’s discretion.
23.  The Court considers that the applicant must have sustained non-pecuniary damage on account of the violation found. Ruling on an equitable basis, it awards him EUR 800 under this head. As to the claim for costs and expenses, the Court considers that it is unsubstantiated and rejects it.
B.  Default interest
24.  The Court considers it appropriate that the default interest rate 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
1.  Declares the remainder of the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 800 (eight hundred euros) in respect of non-pecuniary damage, to be converted into Ukrainian hryvnia 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Mark Villiger
	Deputy Registrar	President