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FIFTH
SECTION
CASE OF
NAKONECHNYY v. UKRAINE
(Application
no. 17262/07)
JUDGMENT
STRASBOURG
26 January
2012
This
judgment is final but it may be subject to editorial revision.
In the case of Nakonechnyy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ann Power-Forde,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 17262/07) 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 Yakovych Nakonechnyy (“the
applicant”), on 6 April 2007.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.
- On
30 November 2010 the
President of the Fifth Section decided to give notice of the
application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in
Mizhgiriya.
A. First set of proceedings
- On
28 April 2001 the prosecutors instituted criminal proceedings against
the applicant, a doctor, for negligence. On 28 December 2001 the
investigations were completed and on 4 February 2002 the case was
referred to the Mizhgirya Court for trial.
- Following
several reconsiderations of the case, on 13 July 2010 the court
acquitted the applicant. It also rejected the victim’s civil
claim against the applicant.
- On
24 November 2010 the Zakarpattya Regional Court of Appeal upheld the
applicant’s acquittal, while it ordered reconsideration of the
civil claim by the first-instance court.
- The
prosecutors lodged an appeal in cassation which is currently pending
before the Higher Specialized Court.
- Between
14 April and 15 May 2005 the applicant was detained pursuant to a
court’s order. Apart from that period, the applicant’s
liberty during the proceedings was restricted by an undertaking not
to abscond.
- So
far, there were ninety-one hearings scheduled, out of which six were
adjourned due to the applicant’s failure to appear. Thirty-two
hearings did not take place as other parties to the proceedings or
witnesses were absent. The judge’s absence resulted in the
adjournments of further ten hearings. One hearing was adjourned due
to technical reasons. On thirteen occasions the courts had to order
the police to ensure the witnesses’ attendance.
B. Second set of proceedings
- On
24 February 2006 the applicant instituted civil proceedings in the
Mizhgiriya Court against his employer challenging his transferral to
another post. On 23 March 2006 the court rejected his claims.
- On
19 July 2006 the Zakarpatsky Regional Court of Appeal upheld that
judgment. On 18 September 2006 the Supreme Court rejected the
applicant’s appeal in cassation. According to the applicant,
that decision was sent to him on 13 October 2006.
II. RELEVANT DOMESTIC LAW
- Relevant
provisions of the Act of 1 December 1994 on the Procedure
for the Compensation of Damage caused to Citizens by the Unlawful
Actions of Bodies in Charge of Operational Enquiries, Pre-trial
Investigation Authorities, Prosecutors or Courts were cited and
summarised in Afanasyev v. Ukraine (no. 38722/02, § 52, 5
April 2005), Kobtsev v. Ukraine (no. 7324/02, § 35,
4 April 2006), and Ratushna v. Ukraine (no. 17318/06,
§§ 44-45, 2 December 2010).
THE LAW
I. THE COMPLAINT CONCERNING THE LENGTH OF THE CRIMINAL
PROCEEDINGS
- The applicant complained that the
length of the criminal proceedings against him was 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
Government contended that the applicant had not exhausted domestic
remedies available to him as he had not claimed damages pursuant to
the Act of 1 December 1994 (see paragraph 13 above). The Government
argued that this action was effective both in theory and practice and
submitted copies of several decisions by which the domestic courts
awarded private persons compensation for the unlawful institution of
criminal proceedings, imposition of an obligation not to abscond and
seizure of assets.
- The
Court reiterates that, according to its established case-law, the
purpose of the domestic remedies rule in Article 35 § 1
of the Convention is to afford the Contracting States the opportunity
of preventing or putting right the violations alleged against them
before those allegations are submitted to the Court. However, the
only remedies to be exhausted are those which are effective. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time. Once this burden of proof has been
satisfied, it falls to the applicant to establish that the remedy
advanced by the Government was in fact exhausted, or was for some
reason inadequate and ineffective in the particular circumstances of
the case, or that there existed special circumstances absolving him
or her from this requirement (see, mutatis mutandis, Dankevich
v. Ukraine, no. 40679/98, § 107, 29 April 2003).
- The
Court notes that the decisive question in assessing the effectiveness
of a remedy concerning a complaint about the length of proceedings is
whether the applicant can raise this complaint before domestic courts
by claiming specific redress; in other words, whether a remedy exists
that could answer his complaints by providing direct and speedy
redress, and not merely indirect protection of the rights guaranteed
in Article 6 of the Convention (see Loshenko v. Ukraine, no.
11447/04, § 28, 11 December 2008). The Court has also held
that a remedy is “effective” if it can be used either to
expedite a decision by the courts dealing with the case, or to
provide the litigant with adequate redress for delays that have
already occurred (see Kudła v. Poland [GC], no. 30210/96,
§§ 157-159, ECHR 2000-XI; Mifsud v. France (dec.)
[GC], no. 57220/00, § 17, ECHR 2002-VIII).
- Applying
the aforementioned approach to the instant case, the Court finds that
the domestic compensation procedure, referred to by the Government,
does not provide for acceleration of the pending judicial
proceedings. Nor does it specifically provide for compensation for
non pecuniary damage caused by unreasonable length of
proceedings. Furthermore, the domestic decisions submitted by the
Government did not concern complaints about the length of
proceedings.
- In
these circumstances, the Court considers that it has not been
sufficiently established that recourse to the remedy suggested
by the Government would have been capable of affording redress to the
applicant in relation to his complaints concerning the length of the
proceedings in his case. The Court therefore rejects the Government’s
objection.
- The
Court further finds that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the
Convention. 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)
- The
Court observes that the period to be taken into consideration began
on 28 April 2001 and has not yet ended. It has thus lasted for about
ten and a half years before the courts of three instances.
- 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, and Yeloyev
v. Ukraine, no. 17283/02, 6 November 2008).
- 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 alleged under Articles 6 and 13 of the Convention that the
proceedings against him were unfair. He further complained under the
same provisions about the outcome of the employment dispute. Relying
on Articles 4 and 14 of the Convention, the applicant complained that
his transferral at work had been unlawful and constituted
discrimination.
27 Having
carefully examined the remainder of the applicant’s complaints
in the light of all the material in its possession, and in so far as
the matters complained of is 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 or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with 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
- The
applicant claimed 50,000 euros (EUR) in respect
of non-pecuniary damage.
- The
Government contested that claim.
- Ruling
on an equitable basis, the Court awards the applicant
EUR 3,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claims under that head. Therefore, the
Court 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 applicant’s complaint under
Article 6 § 1 of the Convention concerning the excessive length
of the criminal 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, 3,200 (three thousand two hundred) euros, plus
any tax that may be chargeable to the applicant, in respect of
pecuniary damage, to be converted into national currency 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 26 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M.
Zupančič
Deputy Registrar President
