FIFTH SECTION
CASE OF
ZAROCHENTSEV v. UKRAINE
(Application no.
39327/06)
JUDGMENT
STRASBOURG
10 January 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Zarochentsev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Committee composed of:
Angelika Nußberger,
President,
André Potocki,
Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 39327/06) 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 Aleksey Gennadyevich Zarochentsev
(“the applicant”), on 8 December 2006.
The applicant was
represented by Mr A. V. Lesovoy, a lawyer practising in Simferopol. The
Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev,
succeeded by Ms V. Lutkovska, of the Ministry of Justice.
On 5 May 2009 the application
was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1974 and lives in Bakhchysaray.
On 7 March 2001 the Kyivskyy District Prosecutor
of Simferopol opened a criminal case in respect of
the applicant on suspicion of embezzlement while at the post of a shop
manager. Criminal proceedings on similar charges were also instituted against
the shop director, Mr Z.
Between 30 May and 9 August 2001 the investigation
was stayed owing to the authorities’ failure to establish the applicant’s
whereabouts. He was placed on a wanted list.
On 13 August 2001 the applicant was apprehended.
On 23 August 2001 the Kyivskyy District Court of
Sevastopol (“the Kyivskyy Court”) remanded him in custody pending trial.
On 29 August 2001 the Court of Appeal of the
Autonomous Republic of Crimea (“the Court of Appeal”) quashed the
aforementioned ruling and released the applicant under an obligation not to
leave the town.
On 13 November 2001 the applicant, as well as
Mr. Z., was indicted as charged and the case was referred to the Kyivskyy Court for trial.
On 3 December 2001 the Kyivskyy Court started
the trial. Overall, it held nine hearings. There were five adjournments for a
total of about five months at the applicant’s request or because of his
absence. Another adjournment for about five months was caused by the judge’s
absence. The examination of the case was delayed for about a year following the
court’s order of a repeated forensic accounting evaluation at the prosecutor’s
request.
On 14 February 2005 the Kyivskyy Court, at a
prosecutor’s request, remitted the case for additional investigation.
On 5 April 2005 the Court of Appeal upheld that
ruling.
After April 2005 the investigation was stayed on
three occasions (for eight months, for one year and three months, and for about
a year, respectively) as the whereabouts of the applicant and Mr. Z. were not
known. All the respective rulings of the investigator were however quashed by
the Prosecutor’s Office of the Autonomous Republic of Crimea as unfounded and new
investigators were assigned to deal with the case.
Meanwhile, according to the applicant, he enquired
about the investigation progress several times, also requesting disciplinary
action to be taken against the prosecutors and investigators concerned.
By a letter of 18 February 2011 the Crimea Prosecutor’s
Office informed the applicant, in reply to his enquiry of 18 January 2011, that
the criminal proceedings against him and Mr. Z. had been terminated on 27 December
2010 for the lack of corpus delicti in their actions.
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 domestic proceedings against him. He
also relied on Article 13 in this regard. The Court considers that the
complaint must be examined solely under Article 6 of the Convention, which
reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ...,
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 (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 applicant maintained that the proceedings
had lasted unreasonably long. He pointed out that they concerned only one
criminal charge and could not therefore be regarded as complex. Furthermore,
the applicant insisted that he had been cooperative throughout, and noted that
the investigating authorities had had access to all the company documents of
relevance.
The Government considered the proceedings to be
complex as they concerned a serious economic crime and involved two suspects. They
attributed to the applicant the delays caused by the stays in the investigation
owing to the authorities’ failure to establish his whereabouts.
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).
Turning to the facts of the present case, the
Court notes that the period to be taken into consideration began on 7 March
2001 and ended in February 2011, when the applicant learnt about the
termination of the proceedings against him, thus lasting almost ten years embracing
the pre-trial investigation and the trial in first-instance.
The Court considers that a great deal was at
stake for the applicant as he was in a state of uncertainty as to his legal
position and his future throughout all this period. Furthermore, he was
detained, albeit for a brief period, and remained subject to an undertaking not
to leave his place of residence from an early stage of the proceedings (see Polishchuk
v. Ukraine, no. 21231/04, § 26, 15
October 2009).
Given that the case at hand was confined to one
criminal charge only, although involving another person, it does not appear
particularly complex.
As to the applicant’s conduct, the Court
considers that it alone cannot justify the overall length of the proceedings. In
addressing the Government’s argument that the investigation was put on hold as
the applicant’s whereabouts could not be established, the Court notes that most
decisions to suspend the investigation were quashed by a higher prosecutor as
unfounded (see paragraph 14 above) and that there was no specific evidence presented
by the Government regarding the authorities’ efforts to contact the applicant.
. As
to the authorities’ conduct, the Court observes that more than three years after
the first-instance court started the trial, the case was referred back to the
pre-trial investigation which took another five years. Eventually, the charge
against the applicant was dropped by the investigative authorities themselves,
without going through judicial review anew (see paragraphs 11-12 and 16 above).
. In
the light of the foregoing, the Court concludes that the State authorities bear
the primary responsibility for the excessive length of the proceedings in
question.
There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No.
4 TO THE CONVENTION
. The
applicant further complained about the length of his undertaking not to leave
the place of residence. He relied on Article 2 of Protocol No. 4 to the
Convention, which reads, insofar as relevant, as follows:
1. Everyone lawfully within
the territory of a State shall, within that territory, have the right to liberty of movement
and freedom to choose his residence ...
3. No restrictions shall be
placed on the exercise of these rights other than such as are in accordance
with law and are necessary in a democratic society in the interests of national
security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others.
4. The rights set forth in paragraph
1 may also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a democratic
society.”
A. Admissibility
. The Court notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
It further notes that this complaint is linked to the one
examined above and, being not
inadmissible on any other grounds, it must therefore likewise be
declared admissible.
B. Merits
30. It is not in dispute
that the obligation not to abscond constituted an interference with the
applicant’s freedom of movement. Furthermore, as the Court had previously found
in cases raising similar issues, in the context of criminal proceedings in Ukraine such interference with a right of a criminal suspect or an accused is in accordance
with law and, in principle, pursues a legitimate aim (see, among other
authorities, Ivanov v. Ukraine, no. 15007/02, §§ 87-89, 7 December
2006 and Nikiforenko v. Ukraine, no. 14613/03, § 55, 18 February
2010). It remains to be seen
whether such interference was “necessary in a democratic society” (see
Ivanov v. Ukraine, cited above, § 90, and Nikiforenko v. Ukraine,
cited above, § 56).
31. The test of “necessity
in a democratic society” requires the Court to determine whether the
interference complained of was “proportionate to the legitimate aims pursued”
(see, mutatis mutandis, Kyprianou v. Cyprus [GC], no. 73797/01, §§ 170-171,
ECHR 2005-XIII). In
respect of the proportionality of the interference, the Court has particular
regard to the duration of the measure in question.
32. Turning to
the facts of the present case, the Court notes that the applicant subject to an obligation not to abscond from 29 August
2001, when he was released from custody, this undertaking being effective until
the applicant learnt about the termination of the proceedings (see paragraphs 9
and 16 above), lasting around nine years and six months. This had restricted him from leaving his place of residence
without permission throughout that time. Even though this restriction might
have initially been warranted, it does not appear to have ever been reviewed
with the passage of time. As to the Government’s argument that the applicant
failed to comply on several occasions, it is not based on any evidence other
than the investigator’s rulings which were eventually quashed as unfounded (see
paragraphs 14, 20 and 25 above). In sum, the length of the
restriction on the applicant’s freedom of movement in the present case was excessive
and its mere duration is sufficient to conclude that it was disproportionate (see
Ivanov v. Ukraine, cited above, §§ 95-97, and Nikiforenko v. Ukraine,
cited above, §§ 58-60).
In view of the above considerations, the Court
reaches the conclusion that a fair balance between the demands of the general
interest and the applicant’s rights was not achieved. Accordingly, there has
been a violation of Article 2 of Protocol No. 4 to 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’s lawyer did not submit claims for
just satisfaction, costs and expenses in line with the procedure. Accordingly,
the Court considers that there is no call to award the applicant any sum on
those accounts.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares
the application admissible;
2. Holds
that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
that there has been a violation of Article 2 of Protocol No. 4 to the Convention.
Done in English, and notified in writing on 10 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Angelika
Nußberger
Deputy Registrar President
