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FIFTH
SECTION
CASE OF KOSTAKOV v. UKRAINE
(Application
no. 32568/05)
JUDGMENT
STRASBOURG
9 December
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Kostakov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Commitee
composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32568/05) 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, Mr Sergey Yuryevich
Kostakov (“the applicant”), on 22 August 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
11 January 2010 the President of the Fifth Section decided to give
notice of the application to the Government. In accordance with
Protocol No. 14, the application is assigned to a Committee
of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in Kyiv.
- On
27 June 2000 the applicant was arrested. The applicant, Mr D., and Mr
B. were charged with one count of robbery. The applicant was also
charged with handling of two handguns with cartridges.
- On
25 September 2000 the proceedings against Mr B. were disjoined.
- On
27 July 2001 the applicant was released having given a written
undertaking not to abscond.
- In
the period prior to 10 October 2002 the Darnitsky District Court of
Kyiv (the district court) remitted the case twice for additional
pre-trial investigation.
- On
10 October 2002 the district court found the applicant guilty and
sentenced him to five years’ imprisonment. The applicant was
arrested.
- On
4 June 2003 the Kyiv City Court of Appeal (the court of appeal)
quashed the part of the judgment concerning the applicant’s
conviction and remitted the case for fresh consideration to the
district court. The court of appeal upheld the applicant’s
detention on remand.
- On
14 November 2003 the district court remitted the case for additional
pre-trial investigation. The applicant was remanded in custody.
- On
14 April 2004 the court of appeal quashed the ruling of 14 November
2003 and remitted the case to the district court for consideration.
By the same decision it upheld the applicant’s detention on
remand.
- On
9 June 2004 the Supreme Court dismissed the applicant’s appeal
in cassation against the ruling of 14 April 2004.
- On
7 July 2004 the applicant was released having given a written
undertaking not to abscond.
- On
23 December 2005 the district court sentenced the applicant to four
years and 10 days’ imprisonment.
- On
22 November 2006 and 12 June 2007 the court of appeal and the Supreme
Court, respectively, upheld the judgment of 23 December 2005.
- According
to the records provided by the Government, the applicant challenged a
judge sitting in his case on six occasions, and once he challenged a
prosecutor. On three occasions the applicant failed to appear.
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
period to be taken into consideration began on 27 June 2000 and ended
on 12 June 2007. It thus lasted almost seven years.
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). What is at stake for the applicant has also
to be taken into consideration. In this respect the Court recalls
that an accused in criminal proceedings should be entitled to have
his or her case conducted with special diligence and Article 6 is, in
criminal matters, designed to ensure that a person who has been
charged does not remain for too long in a state of uncertainty about
his or her fate (see Nakhmanovich v. Russia, no. 55669/00,
§ 89, 2 March 2006).
- Although
some delays can be attributed to the applicant, the Court notes that
the major delays were caused by the remittals of the case. In this
respect the Court reiterates that a repetitive re-examination of the
case within one set of proceedings can disclose a serious deficiency
in the domestic judicial system (see Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003).
- 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, it 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 about the
length and unfairness of the proceedings. He further alleged under
Article 6 § 3 (c) that on an unspecified date in 2002 the judge
of the district court had dismissed his request for a representative.
He also alleged under the same Article that from 2004 to 2005 he had
been represented by a lawyer, appointed ex officio despite his
objection.
- The
applicant complained under Article 5 § 3 of the Convention about
the length of his detention on remand. He further invoked Articles 6
§ 3 (a) and (d) and 5 § 4 of the Convention referring
to the facts of the case. Lastly, the applicant alleged that his
right to dignity, his right to freedom and personal inviolability and
his right to freedom of movement as guaranteed by Articles 28, 29 and
33 of the Constitution of Ukraine had been violated.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 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.”
- The
applicant informed the Court that he had no intention to submit a
claim for just satisfaction. Accordingly, the Court considers that
there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 9 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
