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FIFTH
SECTION
CASE OF
KARAVANSKYY v. UKRAINE
(Application
no. 13375/06)
JUDGMENT
STRASBOURG
14 April
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Karavanskyy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Karel
Jungwiert,
Isabelle Berro-Lefèvre, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 22 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 13375/06) 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 Oleksandr Borysovych Karavanskyy (“the
applicant”), on 22 March 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
11 February 2010 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol no. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Kropyvna, the Cherkassy
Region.
- On
8 April 2002 the prosecutors instituted criminal proceedings against
the applicant, then the founder and director of the agricultural
company K. and the director of the company Z., on suspicion of tax
evasion.
- On
7 May 2002 the applicant’s property was seized.
- On
10 May 2002 the applicant gave an undertaking not to abscond.
- On
17 May 2002 the prosecutors instituted another criminal case against
the applicant on suspicion of tax evasion.
- On
26 June 2002 the prosecutors instituted criminal proceedings against
the applicant on suspicion of forgery. The criminal cases against the
applicant were subsequently joined.
- On
13 July 2002 the applicant was arrested by the police.
- On
15 July 2002 he was released under an undertaking not to abscond.
-
On 30 July 2002 the investigations were completed and the case was
sent to the Zolotonosha Court for trial.
-
Between May 2004 and March 2006, the case was remitted twice for
additional investigations.
- Meanwhile,
by the decisions of the Cherkassy Regional Commercial Court of 19
July 2005 and 16 March 2006, the company K. was declared insolvent
and liquidated.
- On
4 July 2006 the additional investigations were completed and on 5
July 2006 the case was sent to the Zolotonosha Court for trial.
- On
10 September 2007 the Zolotonosha Court found the applicant guilty of
tax evasion and forgery and sentenced him to a fine of
6,800 Ukrainian hryvnias (UAH),
two-year liberty restriction with a prohibition of engaging in any
business activity for the same period. The applicant was exempted
from the punishment for the expiry of statute of limitations.
- On
22 January 2008 the Cherkassy Regional Court of Appeal quashed the
judgment of 10 September 2007 and sent the case for fresh examination
to the first-instance court. It found that the latter had breached
the procedural requirements of the criminal law.
- On
18 March 2009 the Zolotonosha Court found the applicant guilty of tax
evasion and forgery and sentenced him to a fine of UAH 6,800,
one year liberty restriction with a prohibition of engaging in
any business activity for the same period. The applicant was exempted
from the punishment for the expiry of statute of limitations.
- On
2 June 2009 the Cherkassy Regional Court of Appeal quashed the
judgment of 18 March 2009 and remitted the case for additional
investigations.
- On
10 August 2009 the prosecutors dropped part of the charges against
the applicant for the absence of corpus delicti in his
actions.
- The
case is currently pending before the first-instance court.
- In
the course of the proceedings a number of expert examinations were
ordered which delayed the proceedings for about three months. There
were thirty-three witnesses questioned. The hearings were adjourned
thirty seven times mainly because of the failure of the
applicant or his representative to appear which in total caused a
delay of two years. The witnesses failed to attend the hearings on
fourteen occasions which delayed the proceedings for about six
months. The applicant and witnesses were compelled by the authorities
to attend the hearings in view of their repeated failure to appear
before the court. The applicant also lodged a number of requests for
withdrawal of the judge from the case and for studying the case-file,
some of which were allowed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings 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 ...”
- The
Government contested that argument. They submitted that the delays in
the proceedings were caused by the complexity of the case and by the
behaviour of the applicant and other participants in the proceedings.
- The
period to be taken into consideration began on 8 April 2002 and has
not yet ended. It has thus lasted for about eight years and ten
months for two 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 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 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).
- Turning
to the facts of the present case, the Court observes that the major
delays in the proceedings were caused during the pre-trial
investigations in the case and during its examination by the
first-instance court which lasted for about six years and nine
months. During that period the case was remitted for additional
investigations three times and once for a retrial because of
procedural breaches by the trial court (see paragraphs 13, 17 and
19). In such circumstances the Court finds that
the primary responsibility for the excessive length of the
proceedings rests with the domestic authorities. The applicant’s
behaviour and the alleged complexity of the case alone cannot justify
the overall length of the proceedings. Moreover, the Court notes that
the proceedings have not been completed so far.
- 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; Polishchuk
v. Ukraine, no. 21231/04, §§ 31-32,
15 October 2009).
- 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 of the
Convention.
II. OTHER COMPLAINTS
- The
applicant complained of a violation of Article 3 on account of the
criminal proceedings instituted against him and confiscation of the
property of his company. He further complained under Article 6 §§
1, 2, 3 (c) and (d) of the Convention and Article 2 of Protocol
No. 7 about the unfairness of the criminal proceedings. The applicant
finally alleged a violation of Article 1 of Protocol No. 1 in
that the company K. was liquidated and that his property was seized
by the tax authorities.
Without
referring to any specific provision of the Convention, the applicant
complains about the undertaking not to abscond imposed on him in view
of the criminal proceedings.
- In the light of the materials in
its possession, the Court finds that the applicant’s complaints
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 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 1,021,457 euros (EUR) in respect of pecuniary and
EUR 100,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,200 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 65 for the costs and expenses incurred
before the Court.
- The
Government left the matter to the Court’s discretion.
- The
Court notes that the applicant provided relevant supporting documents
for the amount of EUR 31 he had paid for corresponding with the
Court. It therefore awards the applicant this amount.
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
of the Convention of 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,
EUR 2,200 (two thousand two hundred euros) in respect of
non pecuniary damage and EUR 31 (thirty-one euros) for costs and
expenses, plus any tax that may be chargeable, 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 amounts 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 14 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
