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FIFTH
SECTION
CASE OF KYRYLYUK v. UKRAINE
(Application
no. 32241/07)
JUDGMENT
STRASBOURG
6 October
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kyrylyuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32241/07)
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 Viktor Ivanovych Kyrylyuk (“the applicant”),
on 14 June 2007.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.
- On
12 July 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 was allocated to a
Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972.
- On
24 May 2005 the police instituted criminal proceedings against him on
suspicion of fraud. Subsequently, additional charges were brought
against the applicant (unlawful acquisition of a vehicle, money
laundering and forging documents). Since 6 September 2005, he
has remained in detention on remand.
- Following
the completion of the pre-trial investigation, on 24 March 2006 the
case was transferred to the Solomyanskyy District Court of Kyiv,
which on 24 November 2008 delivered a judgment.
- On
27 April 2010 the Kyiv City Court of Appeal quashed that judgment and
remitted the case for fresh examination to the Solomyanskyy Court,
before which the proceedings are still pending.
- According
to the Government, in the course of the proceedings fifty four
witnesses and four victims were interrogated, questioned or
confronted, some of them repeatedly. This took the authorities about
three months in total. Seven forensic examinations were ordered and
lasted for about five months in total. Nine hearings were adjourned
due to the applicant’s and two other co-defendants’
representatives’, victims’ and witnesses’ failure
to appear. The applicant disagreed stating that his representative
had not been informed of the hearings which he had not attended. One
hearing was adjourned on the applicant’s request. Thirty
further hearings were adjourned, mainly because the defendants were
not escorted to the court, due to the witnesses’ or
prosecutor’s failure to appear or because the judge was absent.
On several occasions the courts issued compulsory summonses for
witnesses.
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 stating that the case had been
complex, that its consideration had been complicated by a number of
participants and that the applicant had contributed to the overall
length.
- The
period to be taken into consideration began on 24 May 2005 and has
not yet ended. The proceedings have thus far lasted for about six
years and one month before two judicial levels.
A. Admissibility
- The
Court notes that the application 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). Special diligence to
administer justice expeditiously is required from the domestic courts
when the applicant is held in custody during the proceedings (see,
for instance, Yurtayev v. Ukraine,
no. 11336/02, § 37, 31 January 2006).
- Turning
to the circumstances of the case, the Court notes that the case has
not been particularly complex. As to the number of participants, they
have been interrogated, questioned and confronted within a relatively
short period of time (see paragraph 8 above). The applicant’s
conduct does not appear to have significantly contributed to the
length of the proceedings. On the other hand, the Court is of the
opinion that the main delays have been caused by the lengthy
examination of the case by the Solomyanskyy Court (see paragraph 6
above) and by thirty adjournments of the hearings (see paragraph 8
above). In the latter respect, it observes that, even though the
courts several times issued compulsory summonses for witnesses who
failed to appear, they also had at their disposal other mechanisms to
ensure the witnesses’ presence in the hearings (see Kobtsev
v. Ukraine, no. 7324/02, §
31, 4 April 2006). It was not suggested by the Government that the
courts had ever considered applying them. Nor did the majority of the
compulsory summonses seem to have any effect (see Kobtsev
v. Ukraine,
cited above, § 71). In light of the above, the Court concludes
that the main responsibility for the protracted duration of the
proceedings rests with the State.
- 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). It 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.
- 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, costs and expenses
- The
applicant claimed 10,000 euros (EUR) for
non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have
sustained non-pecuniary damage on the basis of the violation found.
Ruling on an equitable basis, it awards him EUR
2,000 under this head.
B. 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
(a) that
the respondent State is to pay the applicant,
within three months EUR 2,000 (two thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage, to be
converted into the 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M.
Zupančič Deputy Registrar President
