FIFTH SECTION

CASE OF DROGOBETSKAYA v. UKRAINE

(Application no. 41662/05)

JUDGMENT

STRASBOURG

3 January 2013

This judgment is final but it may be subject to editorial revision.

In the case of Drogobetskaya v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Ann Power-Forde,
	Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 4 December 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 41662/05) 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, Ms Natalya Eduardovna Drogobetskaya (“the applicant”), on 28 February 2003.
2.  The applicant was represented by Mr V.A. Drogobetskiy, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, succeeded by Ms V. Lutkovska, of the Ministry of Justice.
3.  On 27 September 2010 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1961 and lives in Kharkiv.
5.  On 11 April 2000 the Kyiv District Prosecutor’s Office of Kharkiv instituted criminal proceedings in respect of the applicant, along with two other persons, on suspicion of tax evasion and forgery in their capacity of a private company’s officials.
6.  On 24 April 2000 the applicant was indicted.
7.  Between 30 May 2000 and 30 June 2004 the Kyivskyy District Court of Kharkiv (“the Kyivskyy Court”) considered the case.
8.  According to the information provided by the Government, in the course of proceedings the hearings were adjourned twelve times because the presiding judge was busy with another case and seven times at the request of the other co-defendants’ lawyers. In addition, there were five adjournments as the applicant or her lawyer was absent. Finally, hearings did not take place four times because the prosecutor was absent and three times owing to the absence of the witnesses. According to the applicant, however, the judge failed to duly notify the parties of the scheduled hearings on many occasions. Some of the adjournments, according to her, were caused by the judge’s inability to ensure the audio-recording of hearings requested by the applicant.
9.  Meanwhile, the applicant lodged numerous complaints with the higher-level courts about the length of the proceedings. As indicated in the reply of the Kharkiv Regional Court of Appeal to one of her complaints, audio-recording equipment was available only in the appellate court and the first-instance court had therefore to adjust the schedule of hearings accordingly.
10.  On 30 June 2004 the Kyivskyy Court, at the prosecutor’s petition and in the presence of the applicant’s lawyer, terminated the proceedings against the applicant as time-barred.
11.  On 8 July 2004 this ruling became final.
THE LAW
I.  COMPLAINTS CONCERNING THE LENGTH OF PROCEEDINGS AND THE LACK OF DOMESTIC REMEDIES IN THAT RESPECT
12.  The applicant complained that the length of the criminal proceedings had been unreasonable and that there had not been an effective domestic remedy in that regard. She relied on Articles 6 § 1 and 13 of the Convention which read as follows in the relevant parts:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...
Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A.  Admissibility
13.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
1.  Article 6 § 1 of the Convention
14.  The applicant maintained that the criminal proceedings against her had lasted unreasonably long and that the judges who had been in charge of her case at trial had been inactive, unreasonably postponing hearings while she herself or her lawyer had attended all the hearings of which they had been duly informed.
15.  The Government contested that argument. They insisted that the case had been complex, given, in particular, its economic nature and the involvement of two other accused, as well as numerous witnesses. The Government also attributed some of the delays to the applicant.
16.  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)
17.  Turning to the facts of the present case, the Court notes that the period to be taken into consideration began on 11 April 2000 and ended on 8 July 2004, when the court resolution to terminate the proceedings against the applicant had become final (see paragraph 11 above). They remained at one level of jurisdiction around four years and three months.
18.  The Court considers that the proceedings were important to the applicant. Although the case involved two criminal charges and three co-accused, it does not appear particularly complex.
19.  As to the conduct of the applicant and authorities, the Court observes that even if there were delays attributable to the applicant, they cannot be considered to have decisively contributed to the total duration of the proceedings. Therefore, the Court considers that the conduct of the applicant alone cannot justify the overall length of the proceedings. The Court observes in particular that while the pre-trial investigation was completed within two weeks, it took the domestic court more than four years and two months to try the case which was ultimately closed as time-bared (see paragraphs 5-7 above). As regards other delays, the Court observes in this connection that it is the role of the domestic courts to manage the proceedings before them so that they are expeditious and effective (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006‑V and Pilipey v. Ukraine, no. 9025/03, § 31, 18 June 2009).
20.  In the light of the foregoing, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in question.
There has accordingly been a breach of Article 6 § 1.
2.  Article 13 of the Convention
21.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000‑XI). The Court further refers to its finding in the Merit case about the lack of an effective and accessible remedy under domestic law for complaints in respect of the length of criminal proceedings (see Merit v. Ukraine, no. 66561/01, § 78-79, 30 March 2004).
22.  There has accordingly also been a breach of Article 13.
II.  OTHER COMPLAINTS
23.  The applicant also complained, referring to Articles 1 and 6 §§ 1 and 3 (b), as well as Article 13, of the Convention, on the allegedly biased conduct of the trial court judges and the lack of her lawyer’s access to the case-file to the detriment of her legal defence.
24.  Having carefully 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.
25.  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
26.  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
27.  The applicant claimed 255,000 euros (EUR) in respect of non-pecuniary and EUR 4,500 of pecuniary damage.
28.  The Government contested these claims.
29.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,300 under that head.
B.  Costs and expenses
30.  The applicant also claimed EUR 500 for the costs and expenses.
31.  The Government contested the claim.
32.  Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses as unsubstantiated.
C.  Default interest
33.  The Court considers it appropriate that the default interest rate 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
1.  Declares the applicant’s complaints under Articles 6 § 1 and 13 of the Convention about the length of the proceedings and the lack of an effective remedy in that regard admissible and the remaining complaints inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,300 (one thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into the national currency of Ukraine 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Deputy Registrar	President