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FIFTH
SECTION
CASE OF BEVZ v. UKRAINE
(Application
no. 7307/05)
JUDGMENT
STRASBOURG
18
June 2009
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 Bevz v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Stanislav
Shevchuk, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 26 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 7307/05) 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 Lyudmyla Volodymyrivna Bevz (“the
applicant”), on 8 February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
29 May 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Monastyryshche, Cherkassy
region, Ukraine.
- On 31 May 2002, following complaints by several persons
about the applicant, the local police launched an investigation into
alleged fraud. The relevant decision begins as follows: “From
2000 to 2001 [the applicant], as the head of [a private company, N.],
received money from [the listed persons] under the pretence [that she
would provide them with] employment abroad, swindling and abusing
their confidence, [...]”.
- Officially the applicant was not charged and
participated in the proceedings as a witness. However, according to
her, by January 2003 she had participated in a number of
confrontations with victims. Furthermore, on 7 June 2002 her house
had been searched by the authorities.
- From 4 July to 26 December 2002 the investigation was
stayed eight times due to the applicant's illness. Apparently no
other investigative steps were taken during this period.
Subsequently, it was held by the District Court that the reasons
relied on by the investigator in his relevant decisions to stay the
proceedings during this period could be applied to an accused only.
- On
9 January 2003 the police instituted two sets of criminal proceedings
against the applicant on suspicion that she had committed abuse of
authority and forgery. Subsequently other sets of proceedings which
had been instituted against the applicant on the related charges were
joined to the main proceedings; the latter eventually incorporated
nine sets with a total of sixteen counts.
- The applicant continued to be interrogated as a witness
up to 29 January 2003 when she was formally charged and gave a
written undertaking not to abscond.
- By
23 June 2003 the investigation was completed and the case was
transferred to the Monastyryshche District Court (“the District
Court”).
- On
7 July 2003 the preliminary court hearing was held.
- On
23 September 2003 the
applicant was arrested.
- On
25 September 2003 the investigator issued
an attachment order over the applicant's car and other items of
property.
- The
next day the District Court ordered the applicant's detention on
remand. Subsequently, on 16 October 2003 the Cherkassy Regional Court
of Appeal quashed this order and the applicant was released.
- On
1 October 2003 the District Court remitted the case for additional
investigation.
- On
10 October 2003 the investigator ordered a forensic technical
examination of a document in the case. The expert report was
completed by 29 October 2003.
- From 30 October 2003 to 18 July 2005 the investigation
was stayed because of the applicant's illness. Nevertheless, within
this period the domestic authorities carried out additional forensic
technical examinations and applied to the Russian authorities for
legal assistance. The expert report was completed within a month and
the international letter rogatory was executed within two months.
- By
5 September 2005 the additional investigation was completed and the
case was transferred to the District Court.
- On
6 October 2005 the preliminary court hearing was held.
- On 23 October 2006 the prosecutor dropped the charges
against the applicant on two counts as her guilt had not been proven.
- On 4 December 2006 the District Court remitted the
case for an additional investigation.
- On
27 February 2007 the Cherkassy Regional Court of Appeal quashed this
decision and remitted the case to the first-instance court for fresh
consideration.
- From 23 August to 26 November 2007 the proceedings
were stayed because of the applicant's illness. The relevant court
decisions stated that the proceedings had been stayed and eventually
resumed upon the applicant's requests. These decisions were not
subject to appeal.
- On 8 July 2008 the prosecutor dropped the charges
against the applicant on four further counts as the investigation had
been conducted in breach of the rules of criminal procedure.
- The proceedings are still pending before the District
Court. In addition to thirty-two hearings held between 6 October 2005
and 18 August 2008, five were cancelled due to the prosecutor's
and judge's illness or prior engagements, seven due to the victims'
and witnesses' failure to appear before the court, and seven due to
the applicant's counsel's failure to appear before the court. Once,
on 22 November 2005, none of the participants mentioned attended the
court hearing. In view of the parties' (victims and witnesses
especially) systematic failure to appear before it, on nine occasions
the District Court ordered their attendance at
the court hearings to be secured by the police.
- During
the proceedings against her, the applicant complained to different
State authorities about the length thereof, but to no avail.
- According to a letter of 10 November 2008 from the
Monastyryshche Central District Hospital, from 2002 to 2008 the
applicant underwent in-patient medical treatment, namely, from 6 to
15 April 2002, from 11 to 26 February and from 8 to 13 October 2003,
and from 1 to 16 November 2004.
- According
to the applicant, her written undertaking not to abscond and the
attachment order of 25 September 2003 are still in place.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings pending
against her 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...”
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
1. Period to be taken into consideration
- The
applicant submitted that the period in question commenced on 31 May
2002 and has not yet ended.
- The
Government contested the dies a quo argument. They pleaded
that initially the applicant took part in the impugned proceedings as
a witness. According to them, she was “charged” on 9
January 2003 only and, therefore, the period to be taken into
consideration started to run from that date.
- The
Court, having regard to the text of the decision to initiate criminal
proceedings and the subsequent investigative measures taken with
regard to the applicant (see paragraphs 5-7 above), takes the
view that the applicant was “charged” within the meaning
of Article 6 § 1 of the Convention on 31 May 2002 (see, mutatis
mutandis, Deweer v. Belgium, 27 February 1980, §
46, Series A no. 35).
- Accordingly,
the period to be taken into consideration began on 31 May 2002
and has not yet ended. It has thus lasted seven years for the
pre-trial investigation and the trial in first instance.
2. Reasonableness of the length of the proceedings
- The
Government maintained that the proceedings were complicated by the
number of charges, victims and witnesses and by the need to carry out
a number of forensic examinations and to have certain investigative
measures carried out abroad. They also contended – referring to
the periods when the proceedings had been stayed because of the
applicant's illness, and the numerous failures by the applicant, her
counsel, victims and witnesses to appear before the District Court –
that these delays could not be imputed to the respondent State. In
sum, they came to the conclusion that the domestic authorities had
acted with due diligence and there was no violation of Article 6 §
1 of the Convention.
- The
applicant disagreed. In particular, relying on the hospital's letter
of 10 November 2008, which gave totally different and considerably
shorter periods of her illness as opposed to the ones asserted by the
Government (see paragraph 27 above), she contended that the
proceedings had been stayed for far-fetched reasons.
- 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 complexity of the case and 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).
- Concerning
the complexity of the case before the domestic authorities the Court
notes that it was neither legally nor factually complicated enough to
justify almost seven years of ongoing proceedings. It only took a few
months for the relevant authorities to carry out the forensic
examinations and to execute the international letter rogatory.
- The
Court agrees that the number of cases instituted against the
applicant and the number of charges which they included might have
complicated the proceedings, but the fact that a significant number
of these charges were subsequently dropped (see paragraphs 20 and 24
above) suggests that they had been brought on unmeritorious grounds
or pursued with a lack of diligence, which diminishes the
Government's argument.
- As
to the applicant's illness, which allegedly led the domestic
authorities to stay the proceedings for a total of two years and five
months (see paragraphs 7, 17 and 23 above), the Court observes
that the Government did not prove that the applicant had in fact been
ill during these periods. Nor did they comment on the periods of
illness referred to by the applicant. In this situation the Court
takes the view that these delays cannot be attributed to the
applicant but to the Government, and that the latter failed to
justify them.
- Lastly,
the Court observes that on numerous occasions the hearings of the
case were adjourned in order to summon victims and witnesses (see
paragraph 25 above). In this respect the Court notes that the
domestic court had at its disposal ample machinery to ensure the
victims' and witnesses' presence in the courtroom; however it does
not appear from the case file that the court availed itself of these
possibilities (see, mutatis mutandis, Smirnova v. Ukraine,
no. 36655/02, § 69, 8 November 2005).
- 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.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained of the fact that in Ukraine there was no
court to which an application could be made to complain of the
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.”
- Referring
to their conclusion that there was no violation of Article 6 §
1 of the Convention, 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 has frequently found violations of
Article 13 of the Convention because the current Ukrainian
legislation does not provide a remedy for complaints concerning the
length of proceedings (see Merit v. Ukraine, no.
66561/01, §§ 78-79, 30 March 2004
and subsequent case-law). In the present case the Court finds no
reason to depart from that case-law.
- 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. 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 78,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 2,000
under that head.
B. Costs and expenses
- The
applicant did not submit any claim 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State 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 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
