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]
SECOND
SECTION
CASE OF KOBELYAN v. GEORGIA
(Application
no. 40022/05)
JUDGMENT
STRASBOURG
16 July
2009
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Kobelyan v. Georgia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 23 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 40022/05) against Georgia
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Georgian national, Mr Leva Kobelyan (“the applicant”),
on 29 September 2005.
- The
Georgian Government (“the Government”) were successively
represented by their Agents, Mr David Tomadze and Mr Levan
Meskhoradze of the Ministry of Justice.
- On
10 January 2008 the
President of the Second Section decided to give notice of the
complaint concerning the length of the proceedings to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Ninotsminda, Georgia.
- On
20 July 2000 criminal proceedings were instituted against the
applicant for a number of economic crimes. He was placed under police
supervision pending trial.
- On
30 June 2001 the prosecution authority terminated the investigation
and sent the case to the Ninotsminda District Court for trial. The
Registry of that court acknowledged receipt of the file on 12 July
2001.
- On
18 January 2005 the Aspindza District Court, which instance had taken
over the applicant’s case, reproaching the prosecutor for
deficiencies in the bill of indictment and the failure to conduct a
financial audit of the applicant’s activities, remitted the
case for an additional investigation. However, on 17 March 2005 the
Tbilisi Appellate Court, overturning the decision of 18 January 2005,
ordered the trial court to proceed with an examination on the merits.
The appellate decision was upheld by the Supreme Court on 14 July
2005.
- In
a verdict of 11 August 2006, the applicant was partly convicted and
partly acquitted of the charges. No sentence was imposed with respect
to the conviction, as it had become time-barred.
- The
verdict of 11 August 2006 was upheld by the Tbilisi Appellate Court
and the Supreme Court on 23 October 2006 and 15 May 2007
respectively.
- As
disclosed by the case materials, the applicant, an ethnic Armenian
allegedly without knowledge of the Georgian language, was assisted by
a Georgian-speaking legal counsel and an interpreter throughout the
judicial proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of
the Convention about the outcome and length of the criminal
proceedings. The provision relied on reads, in its relevant part, as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by a ... tribunal...”
- The
Government, acknowledging that the period of the authorities’
inactivity between 12 July 2001 and 18 January 2005 might have given
rise to a breach of the above-mentioned provision, stated that the
complaint, being lodged more than six months after that delay, was
belated within the meaning of Article 35 § 1 of the Convention.
- In
reply, the applicant maintained his complaints.
A. Admissibility
1. As regards the outcome of the proceedings
- By calling into question the outcome of the
proceedings, the applicant requests the Court to act as an appeal
court of “fourth instance”. However, the Court reiterates
that the domestic courts are best placed for assessing the relevance
of evidence to the issues in the case and for interpreting and
applying rules of substantive and procedural law (see, amongst many
authorities, Rizhamadze v. Georgia, no. 2745/03, § 21,
31 July 2007; Gurepka v. Ukraine, no. 61406/00,
§ 45, 6 September 2005). Insofar as the relevant domestic
decisions do not disclose any manifestly arbitrary reasoning (cf., a
contrario, Donadze v. Georgia, no. 74644/01,
§ 32, 7 March 2006), the Court considers that this limb of
the applicant’s complaint under Article 6 § 1 is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
2. As regards the length of the proceedings
- The
Court reiterates that the period to be taken into consideration in
determining whether the proceedings satisfied the “reasonable
length” is not limited to a particular period of inactivity but
corresponds to the overall duration of these proceedings, from the
moment of their institution until the final determination of the
criminal charges (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, §§ 66 and 73,
ECHR 1999-II). In the present case, this period began on 20 July 2000
and ended on 15 May 2007 (see paragraphs 5 and 9 above). The present
application being lodged on 29 September 2005, the Government’s
objection as regards the failure to comply with the six-month rule
must be dismissed.
- The
Court notes 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
criminal proceedings in the present case lasted 6 years, 9 months
and 25 days for three levels of jurisdiction (see paragraph 15
above). The reasonableness of this period 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, Pélissier and
Sassi, cited above, § 67).
- 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,
especially given the unexplained and therefore unjustified delay of
the judicial proceedings at first instance between 12 July 2001 and
18 January 2005 (cf. Klyakhin v. Russia, no.
46082/99, § 94, 30 November 2004). 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 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant invoked Article 1 of the Convention and Article 2 of
Protocol No. 7 without any relevant explanation. Under Article 5 §
1 (c) of the Convention, he called into question the lawfulness and
length of the pre-trial restraint measure of police supervision.
Article 6 § 3 (a) and (e) of the Convention was invoked to
denounce the applicant’s alleged inability to read a number of
official documents drafted in Georgian as well as to take part in the
court hearings. Lastly, relying on Articles 13 and 14 of the
Convention, the applicant complained about the ineffectiveness of the
domestic judiciary in general and claimed that the protraction of the
criminal proceedings was due to his Armenian ethnicity.
- However, in the light of all the material in its
possession, the Court finds that the applicant’s above
submissions 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 must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 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 1,131,972 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim.
- As
regards the alleged pecuniary damage, the Court observes that the
applicant did not produce any document in support of his claim, which
the Court, accordingly, dismisses. However, the Court
considers that the applicant must have sustained some non-pecuniary
damage on account of the protracted proceedings. Ruling on an
equitable basis, it awards him EUR 1,000 under that head.
B. Costs and expenses
- The
applicant did not claim any costs or expenses. Consequently, the
Court makes no award under this head.
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 unanimously 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 from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 1,000 (one thousand 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 16 July 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
Sally Dollé Françoise Tulkens
Registrar President
