BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
KOTYAY v. UKRAINE
(Application
no. 33645/07)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kotyay v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33645/07) 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 Valeriy Vasylyovych Kotyay (“the applicant”),
on 2 July 2007.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
24 November 2009 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 1973 and lives in Malyn, the Rivne Region.
- On
25 December 2003 the prosecutors started criminal investigations
concerning infliction of a bodily injury on Z.
- On
21 January 2004 the applicant was accused of that crime and had to
give an undertaking not to abscond.
- On
2 March 2004 the pre-trial investigations were completed.
- On
10 March 2004 the case was sent to the Mlyniv Court for trial.
- On
18 April 2008 the Mlyniv Court found the applicant guilty of the
crime of which he had been accused and sentenced him to one year of
liberty restriction. By the same decision it amnestied the applicant.
- On
16 December 2008 the Rivne Regional Court of Appeal allowed the
applicant’s appeal, which he had to resubmit on one occasion in
order to comply with the procedural requirements, quashed the
judgment of 18 April 2008 and remitted the case for a fresh
reconsideration to the first-instance court.
- On
29 December 2009 the Mlyniv Court terminated proceedings as
time-barred.
- On
23 February 2010 the Rivne Regional Court of Appeal quashed the
decision of 29 December 2009 and remitted the case for
re-consideration to the first-instance court. It found that the
applicant’s right to defence had been breached and that the
applicant had not consented to the termination of the criminal
proceedings against him.
- The
case is still pending before the first-instance court.
- In
the course of the proceedings the hearings were adjourned once
because of the applicant’s failure to appear, once on his
request because of his illness, eight times because of the failure of
the applicant’s representative to appear before the court and
on two occasions the hearings were adjourned to give the applicant
and/or his representative a possibility to study the case-file. The
applicant had lodged four requests for withdrawal of the judges.
Between May 2004 and February 2006 four hearings were scheduled, none
of which was held. Between 25 December 2006 and 14 November 2007
three hearings were scheduled and two hearings were held at intervals
of approximately five months.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings was
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which 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 ...”
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
applicant stated that the length of proceedings was excessive.
- The
Government submitted that the delays in the proceedings had been
caused mainly by the conduct of the applicant and his lawyer, in
particular because of their failure to appear and lodging of appeals.
- The
Court notes that the period to be taken into consideration began on
25 December 2003 and has not yet ended. It has thus lasted about six
years and ten months so far.
- 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 reiterates that an accused in criminal
proceedings should be entitled to have his case conducted with
special diligence (see Nakhmanovich v. Russia, no. 55669/00,
§ 89, 2 March 2006).
- The
Court notes that the criminal case at issue is not complex. It
concerns one count of infliction of a bodily injury and does not
involve any complicated factual or legal issues. The applicant is the
only defendant in the case.
- The
Court observes that major delays took place during the examination of
the case by the first-instance court. In particular, it took the
court four years to decide on the case (see paragraphs 8 and 9
above), there were two remittals of the case because of the breach of
procedural law by that court and it has not completed the proceedings
so far. Although there were some delays caused due to the applicant’s
or his lawyer’s failure to appear (see paragraph 14 above), the
Court considers that the primary responsibility for the excessive
length of the proceedings rests with the domestic authorities.
- 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; Polishchuk
v. Ukraine, no. 21231/04, §§ 31-32, 15 October
2009).
- 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 COMPLAINTS
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention of unfairness of the criminal proceedings against him. He
also complained under Articles 6 § 3 (b) and (c) of the
Convention of a violation of his right to defence.
- The
Court notes that the proceedings are still pending before the
domestic courts. It follows these complaints
are premature and must be rejected pursuant to Article 35
§§ 1 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
- The
applicant submitted that a finding of a violation would constitute
sufficient just satisfaction in his case.
- The
Government did not submit any comments.
- The
Court considers that the finding of a violation of Article 6 § 1
of the Convention constitutes in itself sufficient just satisfaction
in the circumstances.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
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;
3. Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant.
Done in English, and notified in writing on 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
