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FIFTH
SECTION
CASE OF RYSHKEVICH v. UKRAINE
(Application
no. 35312/02)
JUDGMENT
STRASBOURG
12 June
2008
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 Ryshkevich v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Volodymyr
Butkevych,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 20 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35312/02) 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 Aleksandr Yanovich Ryshkevich
(“the applicant”), on 2 August 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
13 December 2005 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Listvennoye, the Autonomous
Republic of Crimea (“the ARC”).
- On 16 August 1995 criminal proceedings were
instituted in which the applicant was accused of having negligently
caused a traffic accident resulting in a human death.
- On
13 November 1995 the applicant was placed under an
undertaking not to abscond.
- On
22 November 1995 the applicant was committed for trial.
- On
14 May 1996 the Sovetsky District Court of the ARC (Совєтський
районний суд
Автономної
республіки
Крим) found
that during the pre-trial proceedings the rights of the defence had
not been respected and ordered an additional investigation.
- On
12 May 1997 the applicant was committed for trial.
- On
22 August 1997 the judge remanded the applicant in custody.
- On
2 October 1997 the applicant was arrested and placed in
custody. The applicant requested release, removal of the trial judge
and the transfer of his case to another court.
- On
25 November 1997, following the applicant’s request, the case
was remitted to the Nyzhniegirsky District Court
of the ARC (Нижнєгірський
районний суд
Автономної
республіки
Крим).
- On
20 January 1998 the Nyzhniegirsky District Court remitted the case
for an additional investigation and ordered the applicant’s
release under an undertaking not to abscond.
- On
11 February 1998 the Supreme Court of the ARC (Верховний
суд Автономної
республіки
Крим)
allowed an appeal by the prosecution against the above decision and
remitted the case to the Nyzhniegirsky District Court for a fresh
consideration.
- On
18 May 1999 the Nyzhnyegirsky District Court acquitted the applicant
of the charges. The court found that the expert opinions produced by
the prosecution were insufficient to prove the applicant’s
guilt. On the same day the court issued a separate ruling to the
effect that the police accident report of 13 August 1995 produced to
the court had been forged.
- On
22 June 1999 the Supreme Court of the ARC quashed the judgment and
the separate ruling of 18 May 1999 and remitted the case to the
first-instance court for a fresh consideration.
- In
July 1999 the applicant requested suspension of the proceedings
on the ground that he had lodged requests with the competent
authorities to challenge the ruling of 22 June 1999 by way
of a supervisory protest. The proceedings were suspended. By
September 1999 the applicant’s requests for a supervisory
protest were rejected.
- In
July 2000 the hearings resumed.
- On
3 November 2000 the Nyzhniegirsky District Court remitted the case
for an additional investigation.
- On
15 February 2001 the Supreme Court of the ARC quashed this decision
and remitted the case to the Kirovsky District Court (Кіровський
районний суд
Автономної
республіки
Крим) for
examination on the merits.
- On
26 March 2001 the Kirovsky District Court found the applicant guilty
as charged. The applicant was sentenced to six years’
imprisonment. However, in accordance with the Amnesty Act of 1998, he
was released from punishment. The court also lifted the applicant’s
undertaking not to abscond.
- On
12 July 2001 the Supreme Court of the ARC dismissed an appeal by the
applicant.
- On
21 February 2002 the Supreme Court of Ukraine rejected a request by
the applicant for leave to appeal in cassation.
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
Court observes that the criminal proceedings at issue were instituted
in August 1995. At the same time, the period to be taken into
consideration began only on 11 September 1997, when the
recognition by Ukraine of the right of individual petition took
effect. However, in assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings at the time.
- The
period in question ended on 21 February 2002. It had thus
lasted four years and five 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 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 recalls that an accused in
criminal proceedings should be entitled to have his case conducted
with special diligence (see Nakhmanovich v. Russia, no.
55669/00, § 89, 2 March 2006).
- Turning
to the facts of the present case, the Court considers that the
applicant was significantly affected by the proceedings. The Court
recalls, in particular, that the applicant was facing a long prison
sentence if convicted, remained under an obligation not to abscond
for over four years and was held in custody for several months. As
regards the applicant’s conduct, the Court finds that he did
not contribute significantly to the procedural delays.
- Regard
being had to the nature of the criminal charges, the case before the
domestic authorities bore no signs of special complexity. The delay
in resolution of the case largely resulted from its numerous
transfers between various trial courts and its remittals for
additional investigations and retrials. In addition, the Court notes
a twelve-month interval in scheduling hearings between July 1999
and July 2000, for which the Government has not presented any
plausible explanation.
- 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 Antonenkov and Others v. Ukraine, no. 14183/02,
§ 45, 22 November 2005; Yurtayev v. Ukraine,
no. 11336/02, § 37, 31 January 2006 and Benyaminson
v. Ukraine, no. 31585/02, § 106, 26 July
2007).
- 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.
II. 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
- Initially
the applicant claimed a global sum of 80,000 euros (EUR) by way of
just satisfaction. Subsequently he modified this claim, requesting
the Court to determine the amount of damage on an equitable basis and
having regard to the fact that the institution of criminal
proceedings had impeded the applicant’s capacity to earn a
living. The applicant submitted no documents justifying the latter
allegation.
- The
Government submitted that the applicant’s claim was wholly
unsubstantiated.
- The
Court does not discern any causal link between the violation found
and any pecuniary damage alleged; it therefore gives no award of
pecuniary damage. On the other hand, the Court considers that the
applicant must have sustained non-pecuniary damage. Ruling on an
equitable basis, it awards him EUR 800 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 for costs and expenses. He
presented no documents justifying these claims.
- The
Government contested the 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 been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
gives no award under this head.
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
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 800
(eight hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to be converted into the national
currency of Ukraine 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 12 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
