CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 décembre 2010

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UKRAINE   (Application no. 50165/06)                       JUDGMENT     STRASBOURG   16 December 2010     This judgment is final but it may be subject to editorial revision. In the case of Lygun v. Ukraine , The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Mark Villiger, President ,   Isabelle Berro-Lefèvre,   Ganna Yudkivska, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 23 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 50165/06) 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 Vasylyovych Lygun (“the applicant”), on 25 November 2006. 2.     The applicant was represented by Mr V. Fedorets, a lawyer practising in Zaporizhzhya. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. 3.     On 12 January 2010 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings 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 4.     The applicant was born in 1970 and lives in the Zaporizhzhya Region. 5.     In July 2001 the police instituted criminal proceedings against him on suspicion of murder. 6.     Following three remittals of the case for additional investigations (on 12 February 2002, 9 July 2003 and 2 June 2004), on 7 April 2005 the Melitopol Court found the applicant guilty of negligent homicide, sentenced him to three years’ imprisonment and amnestied him. 7.     In a separate ruling issued on the same date, the court noted that the case had been three times remitted for additional investigations as the investigators had repeatedly failed to comply with the court’s rulings, which had resulted in the protraction of the proceedings and in the breach of the applicant’s right under Article 6 § 1 of the Convention. 8.     On 29 June 2005 the Zaporizhzhya Regional Court of Appeal quashed the judgment of 7 April 2005 and remitted the case for additional investigations. 9.     Following two further remittals of the case by the Melitopol Court for additional investigations (on 28 March and 5 October 2006), on 3 March 2007 the police discontinued the criminal proceedings against the applicant for want of proof against him. 10.     In the course of the proceedings the investigators and the courts heard thirty-eight witnesses, a victim’s relative and experts. Eleven forensic examinations were carried out, their overall duration amounting to approximately seven months. Two hearings were adjourned due to the applicant’s failure to appear. Between 15 and 29 September 2005 the investigations were suspended due to the applicant’s illness. Some fifteen hearings were adjourned due to the experts’, witnesses’ or victim’s relatives’ failure to appear, illness of a judge or for unspecified reasons. THE LAW I.     SCOPE OF THE CASE 11.     Following the Court’s partial admissibility decision, the applicant made further submissions, in which he reiterated all his original complaints. 12.     In its partial admissibility decision, the Court adjourned the examination of the applicant’s complaint about the length of the proceedings and declared the remaining complaints inadmissible. Therefore, the scope of the case before the Court is now limited to the length-of-proceedings complaint. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13.     The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, 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...” 14.     The Government contested that argument stating, in particular, that the case had been complex and that the applicant had contributed to the length of the proceedings by lodging appeals and various procedural petitions and by failing to attend some of the hearings. 15.     The Court observes that the period to be taken into consideration began in July 2001 and ended on 3 March 2007. The proceedings thus lasted for about five years and eight months and involved the courts of two levels of jurisdiction. A.     Admissibility 16.     The Court notes that the 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 17.     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). 18.     Turning to the circumstances of the case, the Court notes that the complexity of the case and the conduct of the applicant, who somewhat contributed to the length of the proceedings (see paragraph 10 above), cannot explain their overall duration. In particular, the Court observes that the major delays in the proceedings were caused by the repeated remittals of the case for additional investigations. Furthermore, it was not suggested by the Government that the domestic courts had applied any measures to ensure appropriate behaviour by the persons taking part in the proceedings and to avoid the need to adjourn hearings (see paragraph 10 above). The Court concludes that the main responsibility for the protracted length of the proceeding rested with the State. 19.     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). 20.     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. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.     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, costs and expenses 22.     The applicant requested the Court to award him compensation for pecuniary and non-pecuniary damage, without any further specification. 23.     The Government contested the claim. 24.     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, considering that the applicant suffered some non-pecuniary damage on account of the length of the proceedings in his case, it awards him 1,600 euros (EUR) in this respect. B.     Default interest 25.     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 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     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 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Stephen Phillips   Mark Villiger   Deputy Registrar   President