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FIFTH
SECTION
CASE OF KIRYAKOV v. UKRAINE
(Application
no. 26124/03)
JUDGMENT
STRASBOURG
12
January 2012
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 Kiryakov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Ann Power-Forde,
André
Potocki, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26124/03)
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 Aleksandr Yevgenyevich Kiryakov (“the applicant”),
on 6 August 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
3. The
applicant alleged, in particular, that the criminal proceedings
against him and civil proceedings, in which he had been involved, had
lasted an unreasonably long time; court judgments in his favour had
remained unenforced; and his freedom of movement had been unfairly
restricted by an undertaking not to abscond.
- On
31 March 2009 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 § 1).
5. Mrs
G. Yudkivska, the judge elected in respect of Ukraine, was unable to
sit in the case (Rule 28 of the Rules of Court). The President of the
Chamber decided to appoint Mr Mykhaylo Buromenskiy to sit as an ad
hoc judge (Rule 29 § 1(b)).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in
Lysychansk.
A. Criminal proceedings against the applicant
- On
15 April 2002 criminal proceedings were instituted into an alleged
abuse of authority by officers of the State Melnikova coal mine on
account of acquisition of portable telephones for the mine despite
the fact that it was badly in arrears with the payment of salaries to
its employees.
- On
17 June 2002 the applicant, the director of the above-mentioned mine
at the material time, was officially charged with abuse of authority
in connection with the above-mentioned proceedings.
- On
18 June 2002 the applicant was placed under an
undertaking not to abscond. Subsequently the applicant was also
suspended from his duties as director of the Melnikova mine pending
the pre-trial criminal investigation of the charges against him.
- On
23 June 2002 R., the mine’s accountant, was also charged with
the abuse of authority within the same proceedings.
- On
30 June 2002 the pre-trial investigation was completed and on 10 July
2002 the case was transferred to the Lysychansk
Town Court for trial.
- On
24 July 2002 new criminal proceedings concerning charges of tax
evasion by way of alienation of the mine’s promissory notes by
the applicant and R. were joined to the previous proceedings.
- On
14 August 2002 new criminal proceedings concerning charges of another
episode of tax evasion (alienation of the mine’s machinery as
scrap metal without the consent of the State tax authorities) were
instituted against the applicant and R. On the same date these
proceedings were joined to the first criminal proceedings against
them.
- On
3 September 2002 the bill of indictment in respect of the tax evasion
charges was transferred to the Lysychansk Town Court for trial.
- On
19 November 2002 the Lysychansk Town Court acquitted the applicant
and R. of the charges of abuse of position in connection with the
acquisition of the portable telephones, finding that this action had
been taken in the mine’s interest. It convicted them of abuse
of authority with respect to the other facts of the case. The court
further sentenced the applicant to four years’ suspended
imprisonment and a term of probation of one year.
- On
7 February 2003 the Lugansk Regional Court of Appeal (“the
Court of Appeal”) upheld that judgment.
- On
1 April 2004 the Supreme Court of Ukraine examined the cassation
appeals lodged against the above judgments and remitted the case for
a fresh appellate review. It found, in particular, that the Court of
Appeal had provided insufficient reasoning for rejecting the
applicant’s arguments that his actions had been lawful.
- On
6 August 2004 the Court of Appeal quashed the judgment of 19 November
2002 with respect to the episodes on the basis of which the applicant
had been convicted, and remitted the case to the prosecutor’s
office for further investigation.
- On
1 December 2004 the prosecutors’ office dropped the charges in
respect of the alienation of scrap metal.
- On
14 December 2004 the case in respect of the alienation of promissory
notes was referred to the Lysychansk Town Court for a re-trial.
- On
14 January 2005 the Lysychansk Town Court remitted the case to the
prosecutor’s office for further investigation. It found, in
particular, that the charges were insufficiently substantiated, as it
was not evident whether the applicant had pursued criminal motives in
selling the promissory notes or what damage to public or private
interests had been caused by his actions.
- On
11 March 2005 the Court of Appeal upheld that decision.
- On
13 May 2005, following additional inquiries, the case was transmitted
to the Lysychansk Town Court for a re-trial.
- On
18 October 2005 the Lysychansk Town Court remitted the case to the
prosecutor’s office for additional investigation.
- On
23 December 2005 the Court of Appeal upheld that decision.
- On
18 July 2006 new criminal proceedings were instituted against the
applicant on suspicion of forgery of official documents (that is, the
falsification of documents concerning his participation in a
fire-prevention training course). On the same date these proceedings
were joined to the previous proceedings against him.
- Also
on the same date, the prosecutor’s office dropped the charges
of tax evasion in respect of the sale of the promissory notes and
terminated the criminal proceedings against the applicant in this
regard.
- On
18 August 2006 the applicant was charged with forgery.
- On
26 September 2006 the case was remitted to the Lysychansk Town Court
for trial.
- On
28 March 2007, after several hearings, the court remitted the case to
the prosecutor’s office for additional investigation, referring
to numerous shortcomings in the previous investigation and lack of
reasoning in the indictment.
- On
11 September 2007 the prosecutor’s office terminated the
criminal proceedings concerning forgery for want of evidence that the
applicant had forged the documents rather than having duly taken part
in the training programme. On the same date the applicant was
released from the undertaking not to abscond.
- On
14 September 2007 the Lysychansk Town Court revoked the ruling of 18
July 2006 by which criminal proceedings had been instituted against
the applicant on suspicion of forgery, having found that it had been
made without a sufficient legal basis. According to the case-file
materials that ruling was not appealed against.
B. Proceedings concerning invalidation of the
suspension order of 3 July 2002
- By
order of the Ministry of Fuel and Energy of Ukraine of 3 July 2002
the applicant was suspended from the performance of his duties as
director of the Melnikova mine pending the pre-trial investigation of
the criminal charges against him.
- On
2 October 2002 he instituted civil proceedings in the Lysychansk Town
Court challenging the validity of the above-mentioned suspension
order.
- On
22 January 2004 the court decided to leave the applicant’s
claim without consideration on account of his failure to appear at
the hearing.
- On
14 November 2005 the applicant appealed against that decision,
requesting the restoration of the time-limit for lodging this appeal
alleging procedural irregularities in the consideration of his case.
- On
22 December 2005 the Lugansk Regional Court of Appeal restored the
time-limit for lodging the appeal.
- On
9 February 2006 the Lugansk Regional Court of Appeal quashed the
decision of 22 January 2004 and remitted the case to the Lysychansk
Town Court for consideration on the merits.
- On
28 August 2006 the court invalidated the disputed suspension order as
unlawful.
- According
to the case-file materials, that decision was not appealed against.
C. Proceedings concerning the applicant’s reinstatement
- On
28 March 2003 the applicant was dismissed from his post as director
of the Melnikova mine by order of Ministry of Fuel and Energy.
- On
29 September 2005 the Severodonetsk Town Court ordered the
applicant’s reinstatement, to be executed immediately,
irrespective of the fact that the judgment was still subject to
appeal. On 16 February 2006 the Lugansk Regional Court of Appeal
upheld that judgment.
- On
27 February 2006 the reinstatement order was issued in respect of the
applicant, following which the applicant was obliged to take part in
a State-run fire-prevention training course and obtain the relevant
certification as a pre-requisite for execution of his functions as
director.
- On
7 August 2006 the applicant was dismissed from his post as the
director of the mine with reference to his failure to comply with the
above requirement. The applicant appealed in court, alleging that the
new dismissal had been unlawful and that the previous reinstatement
judgment had in fact never been enforced. He further claimed 39,125
hryvnias (UAH) in unpaid salary and UAH 30,000 in non-pecuniary
damage.
- On
27 November 2006 the Lysychansk Town Court allowed the applicant’s
claims in part. In particular, it found that the applicant had not
been properly reinstated and that his second dismissal had been
unlawful. The court again ordered the applicant’s reinstatement
and awarded him UAH 36,289 in unpaid salary for the period from
October 2005 until November 2006 and UAH 1,200 for non-pecuniary
damage. In addition, the court issued a separate ruling (окрема
ухвала) drawing the attention
of the Lysychansk Prosecutor to the unlawful conduct of the State
officials in obstructing execution of the judgment of 29 September
2005. The applicant did not appeal against that judgment.
- On
22 March 2007 the Court of Appeal upheld the judgment of 27 November
2006 following the defendant’s appeal.
- On
20 September 2007 the Supreme Court of Ukraine rejected the
defendant’s request for leave to appeal in cassation.
- On
an unspecified date the applicant complained to the court about the
non-enforcement of the judgment of 27 November 2006 and claimed an
unspecified amount in unpaid salary and UAH 30,000 for moral damage.
- On
13 September 2007 the Lysychansk Town Court allowed the applicant’s
claim in part. It found that the applicant had not been properly
reinstated and awarded him UAH 16,266 in unpaid salary and UAH 600
for non-pecuniary damage. The defendant’s appeal having been
dismissed on procedural grounds, this judgment became final.
- On
27 December 2007 the State bailiffs’ service terminated
enforcement proceedings, finding that the judgment had been enforced
in full.
- On
8 January 2008 the applicant was issued with an employee
identification number and a power of attorney to act on the mine’s
behalf as its director, and was introduced to the mine’s staff.
On the same date he was issued with an order to attend a
fire-prevention training course and obtain the necessary
certification for performing his duties.
- On
3 March 2008 the applicant was suspended from performing his duties
as the mine’s director on account of his failure to obtain the
above certification.
- On
an unspecified date the applicant challenged the lawfulness of his
suspension in the Lysychansk Town Court and complained that he had
still not been properly reinstated to his director’s duties and
claimed UAH 10,000 in non-pecuniary damage.
- On
6 November 2008 the Lysychansk Town Court found that the applicant
had failed to substantiate his arguments concerning the
non-enforcement of the reinstatement order, in particular since on 8
January 2008 he had been assigned an employee identification number.
At the same time, the court annulled the suspension order of 3 March
2008, finding that the company had failed to organise the applicant’s
training properly, and awarded the applicant UAH 300 for
non-pecuniary damage. According to the case-file materials this
judgment was not appealed against and became final.
D. Other proceedings and events
- In
November 2002 the applicant instituted civil proceedings in the
Lysychansk Town Court challenging the failure of the prosecutor’s
office to notify the Ministry of Fuel and Energy in good time of the
termination of the pre-trial investigation in his case. On 2 January
2003 the court allowed his complaint. On 2 June 2003 the Court of
Appeal quashed that decision and terminated the proceedings, finding
that such complaint should have been lodged within the framework of
criminal rather than civil proceedings. On 14 October 2004 the
Supreme Court of Ukraine upheld the ruling of the Court of Appeal.
- The
applicant also tried to institute criminal proceedings against the
former and acting directors of the company on account of the
non-enforcement of his reinstatement order and other allegedly
unlawful acts in respect of him. However, his efforts were to no
avail.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE CRIMINAL PROCEEDINGS
AGAINST THE APPLICANT
- The
applicant complained that the length of the
criminal proceedings against him had been unreasonable. He referred
to Article 6 § 1 of the Convention in this regard, which reads
as follows:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.
...”
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
1. The submissions of the parties
- The
applicant complained that the length of the
criminal proceedings against him had been unreasonable.
- The
Government submitted that the period to be taken into consideration
began on 15 April 2002, when the criminal investigation into the sale
of portable telephones implicating the applicant as the director of
the mine, was initiated. The proceedings lasted until 14 September
2007, when the Lysychansk Town Court quashed the decision of the
prosecutor’s office to commence a criminal investigation into
the alleged forgery of the training certificate. The proceedings thus
lasted five years and five months.
- The
Government further maintained that the above-mentioned period, during
which the case was examined at three levels of jurisdiction, had been
reasonable. In particular, the proceedings had involved several
different episodes and defendants and necessitated thorough
investigative actions. Inter alia, over thirty witnesses had
been questioned; on six occasions various financial and other
documents had been seized and examined. Overall, there were no
periods of inactivity imputable to the authorities.
2. The Court’s assessment
- The
Court notes that the proceedings complained about concerned in fact
four separate sets of charges arising from four different sets of
facts (acquisition of portable telephones; alienation of promissory
notes; alienation of property, and forgery of a training
certificate). The relevant investigations terminated in the eventual
dropping of all the charges on four different dates. However, the
proceedings with respect to all the charges were officially joined
together by the investigative authorities. In these circumstances,
and regard being had to the Government’s acknowledgement that
there was only one set of proceedings, the Court accepts that the
period to be taken into account commenced in April 2002 and lasted
until September 2007, that is, five years and five months. Between
June 2002 and September 2007 the applicant remained on an undertaking
not to abscond in connection with the proceedings at issue.
- The
Court notes that during the first round of proceedings the case with
respect to the first three episodes was in fact considered at three
levels of jurisdiction. At the same time, between August 2004 and
September 2007 the case was transferred back and forth between the
investigative authorities and the first-instance court on four
occasions, in particular, with reference to insufficient evidence of
the applicant’s criminal conduct. Eventually, the charges with
respect to all the episodes but the first one (of which the applicant
was acquitted by court) were dropped by the investigative authorities
themselves, without going through judicial review.
- The
Court has already found in a number of judgments that repeated
remittals of a case for re-investigation and prolonged failure of the
authorities to produce to the court a case ready for trial may be
indicative of a serious deficiency in the operation of the criminal
justice machinery (see, for example, Ivanov v. Ukraine, no.
15007/02, § 74, 7 December 2006, and Benyaminson v. Ukraine,
no. 31585/02, §§ 106 – 108, 26 July 2007).
- In
these circumstances the Court finds that the Government have failed
to provide a plausible explanation for the duration of the criminal
proceedings against the applicant.
- Regard
being had to the above and to what was at stake for the applicant in
the proceedings at issue, including restrictions on his liberty of
movement in connection with the undertaking not to abscond, this
period is sufficient for the Court to conclude that there has been a
violation of Article 6 § 1 of the Convention with respect
to the length of the criminal proceedings.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE CIVIL PROCEEDINGS
- The applicant also complained under Article 13 of the
Convention about the unreasonable length of the proceedings he
instituted in October 2002 against the Ministry of Fuel and
Energy of Ukraine. The Court, which is master of the characterisation
to be given in law to the facts of the case (see, as a recent
authority, Castravet v. Moldova, no. 23393/05, § 23,
13 March 2007), finds that the above complaint falls to be examined
solely under Article 6 of the Convention, which was cited above.
- The
Government considered that the duration of the proceedings was not
unreasonable.
- The
Court notes that the proceedings at issue were instituted by the
applicant on 2 October 2002 and lasted until 28 August 2006. However,
the period between 22 January 2004 (the date on which the applicant’s
initial claim was left without consideration) and 22 December 2005
(when the time-limit for lodging his appeal was restored) should be
subtracted from the period to be taken into consideration. The period
to be taken into consideration thus lasted some twenty-three months.
During this period the case was considered by the courts at two
levels of jurisdiction, the matter having been examined on the merits
by the trial court only.
- In
assessing the reasonableness of the period at issue, the Court notes
that it is not clear what was happening with the case between October
2002 (when the proceedings were instituted) and 22 January 2004 (when
the applicant’s claim was left without consideration on account
of his failure to appear for the hearing) and whether this
fifteen-month delay in resolving the case was justified. It further
finds it regrettable that the applicant was not apprised of the
hearing of 22 January 2004 or the decision taken on that day in good
time, which fact contributed to the delay in the final resolution of
his claim. On the other hand, regard being had to the overall
duration of the proceedings, the Court does not consider that the
present complaint raises an issue under Article 6 § 1 of the
Convention, particularly in view of the fact that the applicant first
requested restoration of the time-limit for lodging his appeal nearly
two years after his claim had been left without consideration and did
not appear to have shown special diligence (see, among other
authorities, Gurzhyy v. Ukraine (dec.), no. 326/03, 1 April
2008) in the defence of his interests.
- In
the light of all the above, the Court considers that this aspect of
the application is manifestly ill-founded and should be dismissed in
accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF NON-ENFORCEMENT OF JUDGMENTS
- The
applicant further complained under Article 6 §
1 of the Convention that he had never been reinstated in his position
as director of the Melnikova mine, notwithstanding the court orders
of 29 September 2005 and 27 November 2006 in this regard.
- The
Government claimed that the judgments at issue had been enforced, as
evidenced by the bailiffs’ service’s decision of
27 December 2007 terminating the relevant enforcement
proceedings. The applicant could therefore not claim to have remained
the victim of such a violation. The Government submitted that this
part of the application should therefore be dismissed as incompatible
ratione personae with the provisions of the Convention.
- They
further maintained that the applicant had been precluded from
actually performing the duties of mine director due to his own
systematic failures to comply with the formal training requirements.
In this context his allegations that the State authorities were
responsible for this situation and his failure to notify the Court
that he had obtained all the compensatory payments due to him under
the judgments in due course, were indicative of an abuse of the right
of petition.
- The
applicant disagreed. He submitted that he had never been reinstated
in his position as director of the Melnikova mine and that, having
lost hope, he eventually (in December 2008) took different
employment. He further acknowledged that the compensatory payments
due to him under the judgments had been received by him in full.
However, the object of his claim was not the financial payments, but
the reinstatement per se. As he had never been reinstated, in
fact, he could not be said to have abused his right of petition in
any way.
- The
Court does not find it necessary to address the Government’s
arguments in detail, as it considers that this part of the
application must in any event be dismissed for the following reasons.
The Court notes firstly that the initial ruling ordering the
applicant’s reinstatement was issued by the Lysychansk Town
Court on 29 September 2005. In so far as the applicant challenged the
manner in which it was enforced by the defendant on 27 February 2006,
on 27 November 2006 the improper enforcement was acknowledged by the
judicial authorities, the reinstatement order was confirmed and the
applicant was awarded compensation for the delay in enforcement. In
so far as he claimed that the order of 27 November 2006 was also
improperly enforced, on 13 September 2007 the breach of his rights
was also acknowledged by the domestic authorities and he was awarded
compensatory payments for the delay.
- As
regards the applicant’s argument, contested by the Government,
that after 13 September 2007 he was still not reinstated, the Court
notes that on 27 December 2007 the bailiffs’ service terminated
the enforcement proceedings, having found that the debtor-company had
completed the formalities necessary to consider the applicant
reinstated. Similar position was taken by the Lysychansk District
Court in its judgment of 6 November 2008 within the
framework of proceedings concerning the lawfulness of the 3 March
2008 order suspending the applicant from work. Based on the case-file
materials, the applicant never challenged the above interpretation of
the facts concerning his reinstatement either by the bailiffs (see
Fuklev v. Ukraine, no. 71186/01, § 77, 7 June 2005) or by
the first-instance court and the judgments at issue became final. The
Court has therefore no basis to conclude that the reinstatement order
has remained unenforced to the present time. The Court also notes
that the applicant does not dispute before it the fairness of the
compensation received by him in domestic proceedings.
- Regard
being had to the actions taken at the domestic level to acknowledge
and remedy the breaches of the applicant’s right to have the
court judgments in his favour enforced and the scope of the
applicant’s submissions in the present application, the Court
considers that this aspect of the application is manifestly
ill-founded on the whole.
- It
must therefore be dismissed in accordance with Article 35 §§
3 (a) and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4 OF
THE CONVENTION
- The applicant complained that the
written undertaking not to abscond had violated his right to freedom
of movement. He referred to Article 2 of Protocol no. 4 in this
regard. This provision, in so far as relevant, reads 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.”
- The
Government submitted that the applicant had not exhausted domestic
remedies in respect of this complaint. In particular, since the
criminal proceedings against him had been terminated on exonerative
grounds, he could have lodged a compensation claim under the Act “on
the procedure for the compensation of damage caused to a citizen by
the unlawful actions of bodies of inquiry, pre-trial investigative
authorities, prosecutors and courts” of 1 December 1994 (with
amendments).
- By
way of evidence that the avenue of recourse referred to constituted
an effective remedy, they provided a copy of a judgment of the
Krasnyy Lyman Town Court of 18 July 2006 awarding a Mr G.
UAH 20,062.50 in respect of non-pecuniary damage arising from
his placement under an undertaking not to abscond and his criminal
prosecution lasting a period of some four and a half years which was
terminated on exonerative grounds. The Government have not informed
the Court if that judgment, which was further upheld by the Donetsk
Regional Court of Appeal on 16 October 2006, has become final.
- The
applicant did not comment on the non-exhaustion objection. He
maintained in general terms that his placement under an undertaking
not to abscond had been unfair.
- The
Court notes that Article 35 of the Convention requires that the
complaints made before the Court should have been made to the
appropriate domestic body, at least in substance and in compliance
with the formal requirements and time-limits laid down in domestic
law and, further, that any procedural methods that might prevent a
breach of the Convention should have been used (see Cardot v.
France, 19 March 1991, § 34, Series A no. 200). The
existence of the remedies in question must be sufficiently certain
not only in theory but also in practice, failing which they will lack
the requisite accessibility and effectiveness (see, for example,
Vladimir Fedorov v. Russia, no. 19223/04, § 38, 30 July
2009).
- It
is incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say that it was accessible,
was capable of providing redress in respect of the applicant’s
complaints, and offered reasonable prospects of success. However,
once this burden of proof has been satisfied it falls to the
applicant to establish that the remedy advanced by the Government was
in fact used or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her from the requirement (ibid., §
39).
- Turning
to the facts of the present case, the Court notes that the applicant
has not provided any explanation as to why the remedy invoked by the
Government should not be considered effective in his case. The Court
therefore upholds the Government’s objection as to
non-exhaustion.
- This
aspect of the application should therefore be dismissed as
inadmissible in accordance with Article 35 § 1 and 4 of the
Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 §
1 and Article 13 of the Convention of lack of access to a court with
respect to his complaint about the actions of the prosecutor’s
office; under Article 6 §§ 1 and 3 (b) and (c) of the
Convention of unfairness in the criminal proceedings against him;
under Article 7 of the Convention of having been convicted for acts
which could not be interpreted as criminal; and under Article 1 of
Protocol no. 1 of having been deprived of means of subsistence
for a considerable period of time on account of having been suspended
from work without pay.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, 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 manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
VI. 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 UAH 35,000 in indexation of
unpaid salary and UAH 215,000 in respect of non-pecuniary damage.
- The
Government submitted that these claims were exorbitant and
unsubstantiated.
- The
Court observes that it has found a violation of the Convention only
on account of the unreasonable length of the criminal proceedings
against the applicant. It does not discern any causal link between
the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, ruling on an equitable basis,
it awards the applicant EUR 1,200 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses within the
time-limit fixed. Consequently, the Court does not make any 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 concerning the length of
the criminal proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the criminal
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 1,200 (one thousand two hundred euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into the national currency of Ukraine at the rate
applicable on 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 12 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
