CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 10 novembre 2011

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UKRAINE   (Application no. 31467/06)                         JUDGMENT     STRASBOURG   10 November 2011     This judgment is final but it may be subject to editorial revision. In the case of Kayuda v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Boštjan M. Zupančič, President,   Mark Villiger,   Angelika Nußberger, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 11 October 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 31467/06) 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 Artem Aleksandrovich Kayuda (“the applicant”), on 21 July 2006. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Mrs Valeria Lutkovska, of the Ministry of Justice. 3.     On 14 October 2010 the President of the Fifth Section decided to give notice of the application to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1981 and lives in Kirovograd . 5.     On 2 June 1998 he was arrested on suspicion of robbery. He remained in detention throughout the major part of the proceedings against him. The applicant states, without providing any supporting documents, that during the first days of his detention unspecified police officers beat him. He also states that the police rejected his representative’s request to send him for medical examination. 6.     Following the completion of the pre-trial investigation, on 19   December 1998 the case was referred to the Leninskyy District Court of Kirovograd (“the District Court”), which on 17 July 2001 delivered the judgment. On 2 April 2002 the Kirovograd Regional Court of Appeal (“the Court of Appeal”) upheld it. On 12 November 2002 the Supreme Court quashed it and remitted the case for fresh consideration. 7.     On 24 December 2004 the District Court found the applicant guilty as charged and sentenced him to six years’ imprisonment. It rejected, as unsubstantiated, his complaint about beating in police custody. 8.     On an unspecified date the applicant’s representative lodged a complaint with the same court alleging that some of the court hearings had not been tape-recorded. On 24 May 2005 the court informed him that they had not been recorded because the tape recorder had been broken. 9.     On 19 May 2005 and 2 February 2006, respectively, the Court of Appeal and the Supreme Court upheld the judgment of 24 December 2004. 10.     On 14 August 2007 the applicant was released on parole. 11.     According to the Government, in the course of the proceedings the investigators brought charges against five other persons and interrogated thirty seven witnesses and seven aggrieved parties; the courts heard five co ‑ defendants, twenty four witnesses and six aggrieved parties. This took the authorities about three months in total. Six hearings were adjourned due to the absence of the applicant’s representative, which delayed the proceedings to three months and ten days. Thirty two hearings were adjourned mainly due to the absence of the witnesses, the aggrieved parties, other co-defendants or their representatives or following their requests, as well as due to the absence of the judge or the prosecutor. Thirteen times the courts applied compulsory summonses on the witnesses and aggrieved parties which repeatedly failed to appear. Thirteen expert examinations were carried out, their overall duration amounting to approximately seven months. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 12.     The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him. The above provision 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 ...” 13.     The Government contested that argument stating that the case examination had been complicated by the number of participants in the proceedings and that the applicant had also contributed to the length of the proceedings. 14.     The period to be taken into consideration began on 2 June 1998 and ended on 2 February 2006. It thus lasted seven years and eight months for three levels of jurisdiction. A.     Admissibility 15.     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 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). Special diligence to administer justice expeditiously is required from the domestic courts when the applicant is held in custody during the proceedings (see, for instance, Yurtayev v. Ukraine , no. 11336/02, § 37, 31   January 2006). 17.     Turning to the circumstances of the case, the Court notes that, although the case might have been somewhat complicated by the number of persons involved in the proceedings, those persons were interrogated and heard by the authorities within a relatively short period of time (see paragraph 11 above). It thus considers that the complexity of the case alone cannot explain the overall duration of the proceedings. Nor does the conduct of the applicant, who somewhat contributed to the length of the proceedings (see paragraph 11 above), explain such duration. On the other hand, the Court is of the view that the proceedings were delayed mainly by the lengthy examination of the case by the District Court (see paragraphs 6 and   7 above) and by thirty two adjournments of the hearings (see paragraph   11 above). In the latter respect, the Court notes that, even though on a number of occasions the courts applied compulsory summonses on the persons failing to appear (see paragraph 11 above), they also had at their disposal other effective mechanisms to ensure those persons’ presence, including administrative penalties (see Kobtsev v. Ukraine , no. 7324/02, §   31, 4 April 2006). It was not suggested by the Government that the courts had ever considered applying them. Nor did the majority of the compulsory summonses seem to have any effect (see Kobtsev v. Ukraine , cited above, §   71). The Court concludes, therefore, that the main responsibility for the protracted length of the proceedings rested with the domestic courts. 18.     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). 19.     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 20.     The applicant complained under Article 3 of the Convention that he had been beaten in police custody and that the police had refused to send him for medical examination. He also complained under Article 5 § 1 of the Convention about the unlawfulness of his arrest on 2 June 1998. The applicant further complained under Article 6 § 1 of the Convention that the domestic courts had erred in application of law and assessment of facts, that the judges had been biased and that some of the hearings had not been tape ‑ recorded. Finally, in his submissions of 26 March 2011 the applicant complained, without invoking any provision of the Convention, about unsatisfactory conditions of his detention in the SIZO and the colony. 21.     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 the Convention. 22.     It follows that this part of the application must be declared inadmissible for being manifestly ill-founded, pursuant to Article 35 §§   3   (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.     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 24.     The applicant claimed 2,000,000 euros (EUR) in respect of non ‑ pecuniary damage caused to him in connection with the criminal proceedings against him and his conviction. 25.     The Government contested this claim. 26.     The Court considers that the applicant must have sustained non ‑ pecuniary damage on account of the violation found. Ruling on an equitable basis, it awards him EUR 1,100 under this head. B.     Default interest 27.     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 complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;   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 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 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 10 November 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Boštjan M. Zupančič Deputy Registrar President