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FIFTH
SECTION
CASE OF POLISHCHUK v. UKRAINE
(Application
no. 21231/04)
JUDGMENT
STRASBOURG
15 October
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 Polishchuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21231/04) 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 Georgiyevich Polishchuk (“the
applicant”), on 26 May 2004.
- The
applicant was represented by Ms Anna Petrivna Sazhko, a lawyer
practising in Kharkiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev.
- On
3 September 2008 the
President of the Fifth Section decided to give notice of the
application 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
applicant was born in 1959 and lives in the city of Kharkiv.
A. Criminal proceedings
instituted in 1997
- On
24 December 1997 criminal proceedings were instituted against the
applicant. He was charged with extortion of money from Mr Sh.
and Mrs Shi.
- On
an unspecified date Mr Sh. and Mrs Shi. lodged their civil claims.
They claimed payment of compensation for pecuniary and non-pecuniary
damage caused by the applicant.
- On
16 February 1998 the applicant gave a written undertaking not to
abscond.
- On
2 September 1998 the applicant was also charged with causing damage
to official documents while studying his case file.
- On
5 November 1998 the pre-trial investigation was completed and the
case was transferred to the Kyivsky District Court of Kharkiv.
- On
28 May 2001 the court convicted the applicant of extortion and
damaging official documents and sentenced him to a suspended term of
five years' imprisonment. By the same judgment the court partly
allowed the civil claims.
- On
21 January 2002 the Kharkiv Regional Court of Appeal quashed the part
of the judgment concerning the applicant's conviction for damaging
official documents and ruled that the proceedings in that respect
should be terminated since there was insufficient evidence against
the applicant.
- By
the same ruling the Court of Appeal quashed the remainder of the
judgment and remitted it for fresh consideration to the
first instance court on the ground that the latter had failed to
examine all the circumstances of the case.
- On
4 February 2003 the Kyivsky District Court of Kharkiv convicted the
applicant of extortion and sentenced him to four years' imprisonment,
suspended. By the same judgment the court partly allowed the civil
claims lodged by Mr Sh. and Mrs Shi.
- On
22 May 2003 the Kharkiv Regional Court of Appeal upheld that
judgment.
- On
2 December 2003 the Supreme Court dismissed an appeal in cassation by
the applicant.
- The
hearings in the case were scheduled at intervals ranging between
several days and two months. In the course of the proceedings two
expert reports were obtained. This took about six months. On one
occasion the applicant challenged a judge who was considering his
case.
B. Other proceedings
- On
18 April 1997 the Krasnokutsky Court awarded the applicant 23,943
Ukrainian hryvnas (UAH) in compensation for pecuniary and
non-pecuniary damage caused to the applicant due to Mr Sh.'s failure
to repay a debt he owed to the applicant. On an unspecified date the
judgment was quashed by a higher court.
- In
2008 new criminal proceedings were instituted against the applicant.
On 1 October 2008 he was arrested. He was remanded in custody.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
instituted in 1997 had been 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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 24
December 1997 and ended on 2 December
2003. It thus lasted almost six years, encompassing a
pre-trial investigation and three levels of jurisdiction.
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 Government contested the applicant's complaint,
stating that there had been no significant periods of inactivity
attributable to the State. They maintained that the case had been
complex and that the judicial authorities had acted with due
diligence. According to the Government, the applicant had been
responsible for several delays. In particular, they submitted that by
damaging documents from his case file he had caused delays to the
proceedings. They further stated that the applicant had contributed
to the length of proceeding by lodging motions and appeals and
challenging a judge.
- The
applicant disagreed.
- 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 and 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 considers that a great deal was at stake for the applicant as
he was in a state of uncertainty as to his future and was under an
obligation not to leave his place of residence.
- As
regards the complexity of the case, the Court notes that the
applicant was the only accused in the case. There
is nothing in the case file to suggest that the applicant could be
held responsible for any substantial period of delay. The
proceedings at issue concerned a simple episode of extortion of money
and required the questioning of several witnesses and two victims,
and examination of a certain amount of documentary evidence.
- As
concerns the applicant's motions and appeals, the Court recalls that
the applicant cannot be blamed for using the avenues available to him
under domestic law in order to protect his interests (see Siliny
v. Ukraine, no. 23926/02, § 29, 13 July 2006).
With regard to the Government's submissions concerning damage to the
documents, the Court notes that the proceedings in that respect were
terminated by the Court of Appeal on the ground that there was no
evidence against the applicant.
- The
Court observes that a major delay was caused by the lengthy
consideration of the case by the first instance court and the
subsequent remittal of the case for fresh consideration owing to
insufficient analysis (see paragraphs 9-13 above). It reiterates that
the repetitive re-examination of claims within one set of proceedings
may disclose a serious deficiency in the domestic judicial system
(see Wierciszewska v. Poland, no. 41431/98, § 46,
25 November 2003).
- 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, it 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
- The applicant complained that
the police officer who investigated his criminal case instituted in
1997 had beaten him and threatened to kill him. He relied on Article
5 of the Convention. The applicant further complained under
Article 6 of the Convention that the outcome of the proceedings in
the criminal case had been unfavourable and that therefore the
proceedings as a whole had been unfair, including alleged errors of
fact and law committed by the domestic courts. He complained without
invoking any Article of the Convention that he had no effective
remedies in respect of this complaint. He also complained
about the non-enforcement of the judgment of 18 April 1997. He relied
on Article 6 of the Convention.
- Lastly, the applicant complained that his arrest in
2008 had been unlawful and that the domestic authorities had
unlawfully seized the premises of his company. He also alleged that
the criminal proceedings instituted in 2008 were unfair. He did not
invoke any Article of the Convention or Protocols thereto.
- 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 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 150,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court, making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicant EUR 600 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 in legal expenses
incurred before the Court. He did not provide any documents in
support of that claim.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the applicant's claim.
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 complaint under Article 6 § 1
concerning the excessive length of the criminal proceedings
instituted in 1997 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 600 (six
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable;
(b) that
the latter amount shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the latter 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 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
