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FIFTH
SECTION
CASE OF KOVALENKO v. UKRAINE
(Application
no. 61404/08)
JUDGMENT
STRASBOURG
8 December
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kovalenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André Potocki, judges,
and
Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 61404/08) 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 Vladimir Grigoryevich Kovalenko (“the
applicant”), on 3 December 2008.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.
- On
12 July 2010 the
President of the Fifth Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in
Zaporizhzhya.
- On
20 September 2000 the local prosecutors instituted criminal
proceedings against him on suspicion of bribery. Throughout the major
part of the proceedings the applicant remained on a written
undertaking not to abscond.
- Following
two remittals of the case for additional investigations, on 31 July
2006 the case was referred to the Ordzhonikidzevskyy District Court
of Zaporizhzhya (“the District Court”), which on 11
September 2006 repeatedly remitted the case for additional
investigations. On 6 November 2006 the Zaporizhzhya Regional Court of
Appeal (“the Court of Appeal”) quashed the above ruling
and sent the case to the District Court for trial.
- On
12 April 2007 the latter court found the applicant guilty of bribery,
sentenced him to a pecuniary fine and a one-year prohibition to hold
executive positions and released him from the sentence due to the
expiry of the period of limitation.
- On
18 June 2007 and 6 May 2008, respectively, the Court of Appeal and
the Supreme Court upheld the above judgment.
- According
to the Government, in the course of the proceedings thirteen hearings
were adjourned due to the applicant’s failure to appear and
four hearings due to his lawyer’s failure to appear. The
applicant disagreed stating that he had not attended only two
hearings due to illness and that he had not been informed of other
hearings which he had allegedly failed to attend. The above delays on
the applicant’s part protracted the proceedings by five months
approximately. Twenty-four further hearings were adjourned due to the
witnesses’ or prosecutor’s failure to appear or the
absence of the judges. One expert examination was ordered and lasted
for about one week. According to the Government, the applicant lodged
the appeal in cassation against the decision of 18 June 2007 only on
14 November 2007. According to the applicant, he was served with a
copy of that decision with delay.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Articles 6 § 1
and 14 of the Convention about the unreasonable length of the
criminal proceedings against him. The complaint falls to be examined
solely under Article 6 § 1, 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 ...”
- The
Government contested that argument stating that the case had been
complex and that the applicant had contributed to the overall length
of the proceedings.
- The
period to be taken into consideration began on 20 September 2000 and
ended on 6 May 2008. It thus lasted seven years seven months and
seventeen days for three levels of jurisdiction.
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 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). It also recalls that an
accused in criminal proceedings should be entitled to have his case
conducted with special diligence, having a particular regard to any
restrictions on liberty imposed pending the conclusion of the
proceedings (see Nakhmanovich v. Russia, no. 55669/00,
§ 89, 2 March 2006; and Ivanov v.
Ukraine, no.
15007/02, § 71, 7 December
2006).
15. Turning
to circumstances of the case, the Court
considers that neither the complexity of the
case nor the conduct of the applicant, who contributed somewhat to
the length of the proceedings (see paragraph 9 above), can explain
their overall duration. On the other hand, the Court considers that
the major delays were caused by the remittals of the case for
additional investigations (see paragraphs 5 and 6 above) and by
twenty-four adjournments of the hearings (see paragraph 9 above).
tIt
thus concludes that the main responsibility for the protracted length
of the proceedings rested with the domestic courts.
- 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, 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
ALLEGED VIOLATIONS OF THE CONVENTION
18. The
applicant also complained under Article 6 § 1 of the Convention
about the unfavourable outcome of the proceedings and under Article
14 of the Convention that he had been
discriminated against as the Supreme Court’s ruling had been in
Ukrainian, which he had allegedly not understood.
- 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 those articles of the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to 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 200,000 euros (EUR) in respect
of non pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have
sustained non-pecuniary damage on account of the unreasonable length
of the criminal proceedings against him. Ruling on an equitable
basis, it awards him EUR 1,100 under that
head.
B. Costs and expenses
- The
applicant did not make any claim for costs and
expenses. Accordingly, there is no call for an 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 the complaint about the unreasonable
length of the criminal proceedings against the applicant 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, EUR 1,100 (one thousand one hundred euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into Ukrainian hryvnia 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 8 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy
Registrar President
