CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 10 janvier 2013

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UKRAINE   (Application no. 39327/06)                 JUDGMENT       STRASBOURG   10 January 2013     This judgment is final but it may be subject to editorial revision. In the case of Zarochentsev v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Angelika Nußberger, President,   André Potocki,   Aleš Pejchal, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 11 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 39327/06) 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 Aleksey Gennadyevich Zarochentsev (“the applicant”), on 8 December 2006. 2.     The applicant was represented by Mr A.   V. Lesovoy, a lawyer practising in Simferopol. 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 5 May 2009 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1974 and lives in Bakhchysaray. 5.     On 7 March 2001 the Kyivskyy District Prosecutor of Simferopol opened a criminal case in respect of the applicant on suspicion of embezzlement while at the post of a shop manager. Criminal proceedings on similar charges were also instituted against the shop director, Mr Z. 6.     Between 30 May and 9 August 2001 the investigation was stayed owing to the authorities’ failure to establish the applicant’s whereabouts. He was placed on a wanted list. 7.     On 13 August 2001 the applicant was apprehended. 8.     On 23 August 2001 the Kyivskyy District Court of Sevastopol (“the Kyivskyy Court”) remanded him in custody pending trial. 9.     On 29 August 2001 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) quashed the aforementioned ruling and released the applicant under an obligation not to leave the town. 10.     On 13 November 2001 the applicant, as well as Mr. Z., was indicted as charged and the case was referred to the Kyivskyy Court for trial. 11.     On 3 December 2001 the Kyivskyy Court started the trial. Overall, it held nine hearings. There were five adjournments for a total of about five months at the applicant’s request or because of his absence. Another adjournment for about five months was caused by the judge’s absence. The examination of the case was delayed for about a year following the court’s order of a repeated forensic accounting evaluation at the prosecutor’s request. 12.     On 14 February 2005 the Kyivskyy Court, at a prosecutor’s request, remitted the case for additional investigation. 13.     On 5 April 2005 the Court of Appeal upheld that ruling. 14.     After April 2005 the investigation was stayed on three occasions (for eight months, for one year and three months, and for about a year, respectively) as the whereabouts of the applicant and Mr. Z. were not known. All the respective rulings of the investigator were however quashed by the Prosecutor’s Office of the Autonomous Republic of Crimea as unfounded and new investigators were assigned to deal with the case. 15.     Meanwhile, according to the applicant, he enquired about the investigation progress several times, also requesting disciplinary action to be taken against the prosecutors and investigators concerned. 16.     By a letter of 18 February 2011 the Crimea Prosecutor’s Office informed the applicant, in reply to his enquiry of 18 January 2011, that the criminal proceedings against him and Mr. Z. had been terminated on 27   December 2010 for the lack of corpus delicti in their actions. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17.     The applicant complained under Article 6 § 1 of the Convention about the length of the domestic proceedings against him. He also relied on Article 13 in this regard. The Court considers that the complaint must be examined solely under Article 6 of the Convention, which reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A.     Admissibility 18.     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 19.     The applicant maintained that the proceedings had lasted unreasonably long. He pointed out that they concerned only one criminal charge and could not therefore be regarded as complex. Furthermore, the applicant insisted that he had been cooperative throughout, and noted that the investigating authorities had had access to all the company documents of relevance. 20.     The Government considered the proceedings to be complex as they concerned a serious economic crime and involved two suspects. They attributed to the applicant the delays caused by the stays in the investigation owing to the authorities’ failure to establish his whereabouts. 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.     Turning to the facts of the present case, the Court notes that the period to be taken into consideration began on 7 March 2001 and ended in February 2011, when the applicant learnt about the termination of the proceedings against him, thus lasting almost ten years embracing the pre-trial investigation and the trial in first-instance. 23.     The Court considers that a great deal was at stake for the applicant as he was in a state of uncertainty as to his legal position and his future throughout all this period. Furthermore, he was detained, albeit for a brief period, and remained subject to an undertaking not to leave his place of residence from an early stage of the proceedings (see Polishchuk v. Ukraine , no. 21231/04, §   26, 15 October 2009). 24.     Given that the case at hand was confined to one criminal charge only, although involving another person, it does not appear particularly complex. 25.     As to the applicant’s conduct, the Court considers that it alone cannot justify the overall length of the proceedings. In addressing the Government’s argument that the investigation was put on hold as the applicant’s whereabouts could not be established, the Court notes that most decisions to suspend the investigation were quashed by a higher prosecutor as unfounded (see paragraph 14 above) and that there was no specific evidence presented by the Government regarding the authorities’ efforts to contact the applicant. 26.     As to the authorities’ conduct, the Court observes that more than three years after the first-instance court started the trial, the case was referred back to the pre-trial investigation which took another five years. Eventually, the charge against the applicant was dropped by the investigative authorities themselves, without going through judicial review anew (see paragraphs 11-12 and 16 above). 27.     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. II.     ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION 28.     The applicant further complained about the length of his undertaking not to leave the place of residence. He relied on Article 2 of Protocol No. 4 to the Convention, which reads, insofar as relevant, 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.” A.     Admissibility 29.     The Court notes that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this complaint is linked to the one examined above and, being not inadmissible on any other grounds, it must therefore likewise be declared admissible. B.     Merits 30.     It is not in dispute that the obligation not to abscond constituted an interference with the applicant’s freedom of movement. Furthermore, as the Court had previously found in cases raising similar issues, in the context of criminal proceedings in Ukraine such interference with a right of a criminal suspect or an accused is in accordance with law and, in principle, pursues a legitimate aim (see, among other authorities, Ivanov v. Ukraine , no.   15007/02, §§ 87-89, 7 December 2006 and Nikiforenko v. Ukraine , no.   14613/03, § 55, 18 February 2010). It remains to be seen whether such interference was “necessary in a democratic society” (see Ivanov v. Ukraine , cited above, § 90, and Nikiforenko v. Ukraine , cited above, § 56). 31.     The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of was “proportionate to the legitimate aims pursued” (see, mutatis mutandis, Kyprianou v. Cyprus [GC], no. 73797/01, §§ 170-171, ECHR 2005 ‑ XIII). In respect of the proportionality of the interference, the Court has particular regard to the duration of the measure in question. 32.     Turning to the facts of the present case, the Court notes that the applicant subject to an obligation not to abscond from 29   August 2001, when he was released from custody, this undertaking being effective until the applicant learnt about the termination of the proceedings (see paragraphs   9 and 16 above), lasting around nine years and six months. This had restricted him from leaving his place of residence without permission throughout that time. Even though this restriction might have initially been warranted, it does not appear to have ever been reviewed with the passage of time. As to the Government’s argument that the applicant failed to comply on several occasions, it is not based on any evidence other than the investigator’s rulings which were eventually quashed as unfounded (see paragraphs   14, 20 and 25 above). In sum, the length of the restriction on the applicant’s freedom of movement in the present case was excessive and its mere duration is sufficient to conclude that it was disproportionate (see Ivanov v. Ukraine , cited above, §§ 95-97, and Nikiforenko v. Ukraine , cited above, §§ 58-60). 33.     In view of the above considerations, the Court reaches the conclusion that a fair balance between the demands of the general interest and the applicant’s rights was not achieved. Accordingly, there has been a violation of Article 2 of Protocol No. 4 to the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 34.     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.” 35.     The applicant’s lawyer did not submit claims for just satisfaction, costs and expenses in line with the procedure. Accordingly, the Court considers that there is no call to award the applicant any sum on those accounts. 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 that there has been a violation of Article 2 of Protocol No. 4 to the Convention. Done in English, and notified in writing on 10 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Angelika Nußberger Deputy Registrar   President