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FIFTH
SECTION
CASE OF ARTSYBASHEV v. UKRAINE
(Application
no. 1282/03)
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 Artsybashev 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. 1282/03) 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, Mr Sergey Nikolayevich Artsybashev (“the
applicant”), on 26 October 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
4 December 2006 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 1971 and lives in Makiyivka.
- On
25 August 1997 criminal proceedings were instituted against the
applicant and two other individuals on suspicion of murder. On the
same date the applicant was arrested and remanded in custody.
- In
December 1997 the applicant was committed for trial.
- On
19 March 1998 the Chervonogvardiysky District Court of Makiyivka
(Червоногвардійський
районний суд
м. Макіївка)
remitted the case to the investigative authorities for
additional investigation.
- On
31 August 1998 the additional investigation was terminated and the
case was referred back to the District Court.
- On
21 May 1999 the District Court convicted the applicant of aggravated
murder and sentenced him to eleven years’ imprisonment.
- On
20 July 1999 the Donetsk Regional Court (Донецький
обласний суд)
quashed the judgment and remitted the case for additional
pre-trial investigation.
- On
15 December 1999 the additional investigation was terminated and the
case was referred to the District Court.
- On
2 June 2000 the District Court remitted the case for additional
investigation.
- In
September 2000, after the additional investigation was
terminated, the case was referred back to the District Court.
- On
27 October 2000 the District Court again remitted the case for
additional investigation.
- In
February 2001 the case was referred to the Regional Court to act
as a first-instance court.
- On
24 July 2001 the Regional Court convicted the applicant of aggravated
murder and sentenced him to fourteen years’ imprisonment.
- On
11 July 2002 the Supreme Court upheld the judgment.
- Throughout
the course of the proceedings some thirty-two hearings were scheduled
by the trial court. Some twelve of them were adjourned on account of
one or more of the five witnesses’ failures to appear. Two
hearings were adjourned in view of the authorities’ failure to
bring the applicant, who was kept in custody, before the court. On
seven occasions the hearings were postponed on account of the judge’s
ill health.
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
applicant was arrested on 25 August 1997. However, 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 11 July 2002. It thus lasted
four years and ten 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, particularly, where he is, as in the present case,
kept in custody (see Nakhmanovich v. Russia, no. 55669/00,
§ 89, 2 March 2006, and Yurtayev v. Ukraine,
no. 11336/02, § 37, 31 January 2006).
- The
Court finds that the overall length of the proceedings can be
explained neither by the complexity of the criminal case, nor by the
applicant’s conduct. It considers that a number of delays (in
particular, repeated remittals of the case for additional
investigation and numerous adjournments of hearings on account of the
judge’s ill health and the authorities’ failure to secure
the appearance of the applicant or the witnesses) are attributable to
the Government.
- 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 Yurtayev, cited above, §§ 37-38;
Antonenkov and Others v. Ukraine, no. 14183/02, § 45,
22 November 2005; and Mazurenko v. Ukraine, no. 14809/03,
§ 47, 11 January 2007).
- Having
regard to the material submitted to it and 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
- The
applicant claimed 12,100 Ukrainian hryvnyas (UAH) in respect of
pecuniary damage and UAH 25,000 in respect of non-pecuniary
damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. 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 UAH 2,000 for the costs and expenses. He
presented no documents in support of this claim.
- The
Government submitted that this claim should be rejected as
unsubstantiated.
- 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
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 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
