CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 26 janvier 2012

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UKRAINE   (Application no. 17262/07)                     JUDGMENT       STRASBOURG   26 January 2012     This judgment is final but it may be subject to editorial revision. In the case of Nakonechnyy v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Boštjan M. Zupančič, President,   Ann Power-Forde,   Angelika Nußberger, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 4 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 17262/07) 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 Viktor Yakovych Nakonechnyy (“the applicant”), on 6 April 2007. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice. 3.     On 30 November 2010 the President of the Fifth Section decided to give notice of the application to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1947 and lives in Mizhgiriya. A.     First set of proceedings 5.     On 28 April 2001 the prosecutors instituted criminal proceedings against the applicant, a doctor, for negligence. On 28 December 2001 the investigations were completed and on 4 February 2002 the case was referred to the Mizhgirya Court for trial. 6.     Following several reconsiderations of the case, on 13 July 2010 the court acquitted the applicant. It also rejected the victim’s civil claim against the applicant. 7.     On 24 November 2010 the Zakarpattya Regional Court of Appeal upheld the applicant’s acquittal, while it ordered reconsideration of the civil claim by the first-instance court. 8.     The prosecutors lodged an appeal in cassation which is currently pending before the Higher Specialized Court. 9.     Between 14 April and 15 May 2005 the applicant was detained pursuant to a court’s order. Apart from that period, the applicant’s liberty during the proceedings was restricted by an undertaking not to abscond. 10.     So far, there were ninety-one hearings scheduled, out of which six were adjourned due to the applicant’s failure to appear. Thirty-two hearings did not take place as other parties to the proceedings or witnesses were absent. The judge’s absence resulted in the adjournments of further ten hearings. One hearing was adjourned due to technical reasons. On thirteen occasions the courts had to order the police to ensure the witnesses’ attendance. B.     Second set of proceedings 11.     On 24 February 2006 the applicant instituted civil proceedings in the Mizhgiriya Court against his employer challenging his transferral to another post. On 23 March 2006 the court rejected his claims. 12.     On 19 July 2006 the Zakarpatsky Regional Court of Appeal upheld that judgment. On 18 September 2006 the Supreme Court rejected the applicant’s appeal in cassation. According to the applicant, that decision was sent to him on 13 October 2006. II.     RELEVANT DOMESTIC LAW 13.     Relevant provisions of the Act of 1   December   1994 on the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in Charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts were cited and summarised in Afanasyev v. Ukraine (no. 38722/02, § 52, 5 April 2005), Kobtsev v.   Ukraine (no. 7324/02, § 35, 4 April 2006), and Ratushna v. Ukraine (no.   17318/06, §§ 44-45, 2 December 2010). THE LAW I.     THE COMPLAINT CONCERNING THE LENGTH OF THE CRIMINAL PROCEEDINGS 14.     The applicant complained that the length of the criminal proceedings against him 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 ...” A.     Admissibility 15.     The Government contended that the applicant had not exhausted domestic remedies available to him as he had not claimed damages pursuant to the Act of 1 December 1994 (see paragraph 13 above). The Government argued that this action was effective both in theory and practice and submitted copies of several decisions by which the domestic courts awarded private persons compensation for the unlawful institution of criminal proceedings, imposition of an obligation not to abscond and seizure of assets. 16.     The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective. 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. 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 exhausted, 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 this requirement (see, mutatis mutandis , Dankevich v. Ukraine, no. 40679/98, §   107, 29 April 2003). 17.     The Court notes that the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether the applicant can raise this complaint before domestic courts by claiming specific redress; in other words, whether a remedy exists that could answer his complaints by providing direct and speedy redress, and not merely indirect protection of the rights guaranteed in Article 6 of the Convention (see Loshenko v. Ukraine , no. 11447/04, §   28, 11 December 2008). The Court has also held that a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudła v. Poland [GC], no. 30210/96, §§ 157-159, ECHR 2000-XI; Mifsud v. France (dec.) [GC], no. 57220/00, §   17, ECHR 2002-VIII). 18.     Applying the aforementioned approach to the instant case, the Court finds that the domestic compensation procedure, referred to by the Government, does not provide for acceleration of the pending judicial proceedings. Nor does it specifically provide for compensation for non ‑ pecuniary damage caused by unreasonable length of proceedings. Furthermore, the domestic decisions submitted by the Government did not concern complaints about the length of proceedings. 19.     In these circumstances, the Court considers that it has not been sufficiently established that recourse to the remedy suggested by the Government would have been capable of affording redress to the applicant in relation to his complaints concerning the length of the proceedings in his case. The Court therefore rejects the Government’s objection. 20.     The Court further finds that this complaint is not manifestly ill ‑ founded within the meaning of Article   35   § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 21.     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) 22.     The Court observes that the period to be taken into consideration began on 28 April 2001 and has not yet ended. It has thus lasted for about ten and a half years before the courts of three instances. 23.     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, and Yeloyev v. Ukraine , no. 17283/02, 6   November 2008). 24.     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. 25.     There has accordingly been a breach of Article 6 § 1. II.     OTHER COMPLAINTS 26.     The applicant alleged under Articles 6 and 13 of the Convention that the proceedings against him were unfair. He further complained under the same provisions about the outcome of the employment dispute. Relying on Articles 4 and 14 of the Convention, the applicant complained that his transferral at work had been unlawful and constituted discrimination. 27     Having carefully examined the remainder of the applicant’s complaints in the light of all the material in its possession, and in so far as the matters complained of is 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 or its Protocols. 28.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 29.     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 30.     The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 31.     The Government contested that claim. 32.     Ruling on an equitable basis, the Court awards the applicant EUR   3,200 in respect of non-pecuniary damage. B.     Costs and expenses 33.     The applicant did not submit any claims under that head. Therefore, the Court makes no award. C.     Default interest 34.     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 applicant’s complaint under Article 6 § 1 of the Convention concerning the excessive length of the criminal 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, 3,200 (three thousand two hundred) euros, plus any tax that may be chargeable to the applicant, in respect of pecuniary damage, to be converted into national currency 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 26 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Boštjan M. Zupančič Deputy Registrar   President