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FIFTH
SECTION
CASE OF KAYUDA v. UKRAINE
(Application
no. 31467/06)
JUDGMENT
STRASBOURG
10
November 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kayuda v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Mark Villiger,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 31467/06) 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 Artem Aleksandrovich Kayuda (“the
applicant”), on 21 July 2006.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeria Lutkovska, of the Ministry of Justice.
- On
14 October 2010 the
President of the Fifth Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1981 and lives
in Kirovograd.
- On
2 June 1998 he was arrested on suspicion of robbery. He remained in
detention throughout the major part of the proceedings against him.
The applicant states, without providing any supporting documents,
that during the first days of his detention unspecified police
officers beat him. He also states that the police rejected his
representative’s request to send him for medical examination.
- Following the completion of the pre-trial
investigation, on 19 December 1998 the case was referred to the
Leninskyy District Court of Kirovograd (“the District Court”),
which on 17 July 2001 delivered the judgment. On 2 April 2002 the
Kirovograd Regional Court of Appeal (“the Court of Appeal”)
upheld it. On 12 November 2002 the Supreme Court quashed it and
remitted the case for fresh consideration.
- On
24 December 2004 the District Court found the applicant guilty as
charged and sentenced him to six years’ imprisonment. It
rejected, as unsubstantiated, his complaint about beating in police
custody.
- On
an unspecified date the applicant’s representative lodged a
complaint with the same court alleging that some of the court
hearings had not been tape-recorded. On 24 May 2005 the court
informed him that they had not been recorded because the tape
recorder had been broken.
- On
19 May 2005 and 2 February 2006, respectively, the Court of Appeal
and the Supreme Court upheld the judgment of 24 December 2004.
- On
14 August 2007 the applicant was released on parole.
- According
to the Government, in the course of the proceedings the
investigators brought charges against five other persons and
interrogated thirty seven witnesses and seven aggrieved parties; the
courts heard five co defendants, twenty four witnesses and six
aggrieved parties. This took the authorities about three months in
total. Six hearings were adjourned due to the absence of the
applicant’s representative, which delayed the proceedings to
three months and ten days. Thirty two hearings were adjourned mainly
due to the absence of the witnesses, the aggrieved parties, other
co-defendants or their representatives or following their requests,
as well as due to the absence of the judge or the prosecutor.
Thirteen times the courts applied compulsory summonses on the
witnesses and aggrieved parties which repeatedly failed to appear.
Thirteen expert examinations were carried out, their overall duration
amounting to approximately seven months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of
the Convention about the length of the criminal proceedings against
him. The above provision reads, in so far as relevant, 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 examination
had been complicated by the number of participants in the proceedings
and that the applicant had also contributed to the length of the
proceedings.
- The
period to be taken into consideration began on 2 June 1998 and ended
on 2 February 2006. It thus lasted seven years and eight 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 (a) 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, although the
case might have been somewhat complicated by the number of persons
involved in the proceedings, those persons were interrogated and
heard by the authorities within a relatively short period of time
(see paragraph 11 above). It thus considers that the complexity of
the case alone cannot explain the overall duration of the
proceedings. Nor does the conduct of the applicant, who somewhat
contributed to the length of the proceedings (see paragraph 11
above), explain such duration. On the other hand, the Court is of the
view that the proceedings were delayed mainly by the lengthy
examination of the case by the District Court (see paragraphs 6 and 7
above) and by thirty two adjournments of the hearings (see
paragraph 11 above). In the latter respect, the Court notes
that, even though on a number of occasions the courts applied
compulsory summonses on the persons failing to appear (see paragraph
11 above), they also had at their disposal other effective
mechanisms to ensure those persons’ presence, including
administrative penalties (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). The
Court concludes, therefore, that the main responsibility for the
protracted length of the proceedings rested with the domestic courts.
- 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
20. The
applicant complained under Article 3 of the Convention that he
had been beaten in police custody and that the police had refused to
send him for medical examination. He also complained under Article 5
§ 1 of the Convention about the unlawfulness of his arrest on 2
June 1998. The applicant further complained under Article 6 § 1
of the Convention that the domestic courts had erred in application
of law and assessment of facts, that the judges had been biased and
that some of the hearings had not been tape recorded. Finally,
in his submissions of 26 March 2011 the applicant complained, without
invoking any provision of the Convention, about unsatisfactory
conditions of his detention in the SIZO and the colony.
- 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 for being manifestly ill-founded, pursuant to Article 35
§§ 3 (a) 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.”
A. Damage, costs and expenses
- The
applicant claimed 2,000,000 euros (EUR) in
respect of non pecuniary damage caused to him in connection with
the criminal proceedings against him and his conviction.
- The
Government contested this claim.
- The
Court considers that the applicant must have
sustained non pecuniary damage on account of the violation
found. Ruling on an equitable basis, it awards him
EUR 1,100 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 complaint concerning the excessive
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;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months EUR 1,100 (one thousand one hundred 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 10 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan
M. Zupančič Deputy Registrar President
