CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 17 décembre 2019

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UKRAINE (Application no. 47921/08)             JUDGMENT   STRASBOURG 17 December 2019   This judgment is final but it may be subject to editorial revision. In the case of Azyukovska v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Síofra O’Leary, President,   Ganna Yudkivska,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 26 November 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 47921/08) 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 Tayisa Denisovna Azyukovska (“the applicant”), on 17 September 2008. 2.     The applicant, who had been granted legal aid, was represented by Mr   A.S. Kychenok, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr   I.   Lishchyna. 3.     The applicant alleged that the criminal proceedings against her were excessively lengthy. 4.     On 14   February 2019 the Government were given notice of the above complaint and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1954 and lives in Novomoskovsk. 6.     On 25 May 2005 Mr K. a manager of a company which had dealings with the applicant’s then-employer, the State-owned telecom company, apparently informed the prosecutor’s office that the applicant was demanding money for signing a document in her official capacity. He provided an audio recording of his conversations with the applicant. 7.     On 26 May 2005 criminal proceedings were instituted in that connection, K. met the applicant and secretly recorded his conversation with her on a device provided by the authorities. The applicant was arrested. Cash marked by the police with special luminescent substance was seized. 8.     On 1 June 2005 the applicant was released and an undertaking not to abscond was imposed. 9 .     On 7 June 2005 the proceedings against the applicant were discontinued for lack of evidence of her guilt. According to her, she was not informed of that decision. The Government stated that the domestic case file contained no document indicating that she was informed (see paragraphs   27 and 28 below). 10 .     On 19 October 2006 the criminal investigation was resumed by a superior prosecutor. On the same date the applicant was questioned in the capacity of the accused. 11.     On 14 November 2006 the investigation was completed and the case was sent for trial to Novomoskovsk Court. 12.     The court held hearings on 28 November 2006, 16   January, 5   February, 20 March, 13 April, 3 and 31 May, 20 June, 16 July, 28   August, 24 September, 6 November, 14 and 28 December 2007, 19 February and 26   March 2008. On the latter date the trial court remitted the case for further investigation as the prosecutor failed to find originals of the documents that the applicant was to issue and sign in return of the alleged bribe, nor had the time and place where the applicant had demanded money been established. 13 .     On 29 December 2008 the proceedings were discontinued for lack of evidence of the applicant’s guilt. 14.     On 8 January 2009 the superior prosecutor quashed that decision and the proceedings were resumed. 15.     On 18 February 2009 the proceedings were discontinued again for the same reason. 16.     On 3 April 2009 that decision was quashed and the investigation resumed. 17.     On 27 May 2009 the police concluded its internal investigation into the circumstances under which the recordings of the applicant’s conversations with K. had been lost. The investigation concluded that no police officer was implicated in the loss. 18.     On 6 July 2009 the criminal proceedings were discontinued on the same grounds as before (see paragraph 13 above). 19.     On 24 July 2009 that decision was quashed by a superior prosecutor and the investigation resumed. 20 .     On 14 September 2009 the criminal proceedings were again discontinued as a key element of evidence, the recordings of the applicant’s conversations with K., had been lost. 21.     On 29 December 2010 the criminal proceedings were reopened on the applicant’s insistence. The applicant considered that the reasoning of the decision of 14 September 2009 was not sufficiently exonerating. 22.     On 4 March 2011 the proceedings were discontinued on the same grounds (see paragraphs 13 and 18 above). 23.     On 29 March 2011 that decision was quashed by a superior prosecutor and the proceedings were resumed. 24.     The proceedings were finally discontinued on 16 May 2011, for the same reasons (see paragraphs 13, 18 and 22 above). RELEVANT DOMESTIC LAW 25 .     Article 214 of the 1960 Code of Criminal Procedure, in force at the relevant time, required that a decision to discontinue proceedings be sent to the prosecuted person. THE LAW ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 26.     The applicant complained that the length of the criminal proceedings in her case had been incompatible with the “reasonable time” requirement of Article 6 § 1, which reads: “In the determination of... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” The parties’ submissions 27 .     The applicant considered that the relevant period lasted from May 2005 to May 2011, that is six years, which was excessive for her case which had not been complex (citing Rouille v. France , no. 50268/99, §   29, 6   January 2004, and Shalimov v. Ukraine , no. 20808/02, § 77, 4 March 2010). The applicant insisted that she had not been informed of the decision to discontinue proceedings of 7 June 2005 (see paragraph 9 above) and had remained under the impression that the criminal proceedings against her remained pending. She had not been informed of that decision until 14   November 2006, when she had received a response to her previous request about the progress in proceedings. Given that the State agents had intentionally withheld information from her over seventeen months, she considered it appropriate to count that period towards the length of proceedings in her case. She herself had caused no delay in the proceedings. 28 .     The Government submitted that the criminal proceedings against the applicant started on 26 May 2005 and were finally discontinued on 16   May 2011 but the parts of that period when the proceedings had been discontinued and there were no criminal charges against the applicant could not be taken into account in calculating the length of proceedings. They considered, accordingly, that the relevant period was three years and seven months. This was not unreasonable (citing Ignatyev   v.   Russia (dec.), no.   1267/13, 7 December 2017 [Committee]). A considerable amount of investigative actions had been conducted in that period, the court hearings had been scheduled at regular intervals. Any delays in the proceedings had been caused by the complexity of the case, the applicant’s conduct and the conduct of other parties to the proceedings. The Court’s assessment Admissibility 29.     The Court notes that the application 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. Merits 30.     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 and 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). 31.     The Court considers that the principal issue before it in the present case is what specific periods should be taken into account in assessing the reasonableness of proceedings. The parties disagreed on this point. According to the applicant, the relevant period was six years and according to the Government three years and seven months (see paragraphs 27 and 28 above). 32.     It is an established principle of the Court’s case-law that only the periods when proceedings are actually pending can be taken into account for the purpose of determining the length of proceedings (see, for example, Prescher v. Bulgaria , no.   6767/04, §§ 33 and 34, 7 June 2011). 33.     The Government does not contest the applicant’s allegation that she was not informed of the decision to discontinue criminal proceedings against her taken on 7   June 2005 and that she only learned of that decision on 14 November 2006, after the proceedings against her had already been resumed on 19   October 2006 (see paragraphs 9, 10, 27 and 28 above). 34.     Accordingly, the Court considers it established that the applicant was not informed of that initial discontinuation decision and, as a result, the applicant considered herself to be the subject of criminal proceedings without interruption throughout the period from 26 May 2005 to 29   December 2008 (see paragraph 13 above). 35.     The Court considers that that period, when the applicant was under the impression that she remained subject to criminal proceedings, due to the authorities’ failure to inform her to the contrary, must be taken into consideration in assessing the length of proceedings (see Borzhonov v.   Russia , no. 18274/04, § 38, 22 January 2009). 36.     Accordingly, the relevant periods when proceedings were pending are from 26 May 2005 to 29 December 2008, 8 January to 18 February, 3   April to 6 July, 24   July to 14 September 2009, 29 December 2010 to 4   March 2011 and from 29 March to 16 May 2011, that is four years and five months overall, involving pre-trial investigation and proceedings before one level of jurisdiction. 37.     The Court considers that the applicant’s case was simple: it involved one episode of alleged criminal activity of a simple nature which directly involved just two persons: the applicant and K. 38.     The Court has held that, for a simple case like the applicant’s such a length of proceedings before one level of jurisdiction is problematic (see, for example, Šleževičius v.   Lithuania , no. 55479/00, §§ 28-31, 13 November 2001, and Bursuc v.   Romania , no.   42066/98, §§ 117-20, 12 October 2004). 39.     Out of the total period of more than four years the period of one year and four months, from 7 June 2005 to 19 October 2006, was caused by the authorities’ failure to inform the applicant of the decision to discontinue the proceedings against her taken on the former date. The Government provided no explanation for this failure, which was in apparent breach of domestic law (see paragraph 25 above). 40.     Moreover, the proceedings were repeatedly discontinued and resumed. In addition, the case was remitted for further investigation. It is well-established in the Court’s case-law that repetition of such decisions within one set of proceedings can disclose a deficiency in the organisation of the criminal justice system (see, for example, Wierciszewska v.   Poland , no.   41431/98, § 46, 25 November 2003, and Gavula v.   Ukraine , no.   52652/07, § 99, 16 May 2013). 41.     The Court is conscious of the fact that the applicant could be considered to be partially responsible for further prolonging the proceedings after 29 December 2010 because she insisted on them being reopened, even though key evidence had been lost and in the absence of any indication that the lost evidence could be located after reopening. Nevertheless, the authorities acceded to her reopening request, which was based on the fact that she did not consider that she had been sufficiently exonerated, indicating that they did not consider it entirely unfounded. In any event, by that time the length of proceedings, due to the aforementioned failings on the part of the authorities, had already ceased to be reasonable. 42.     These considerations are sufficient for the Court to conclude that the proceedings in the applicant’s case did not comply with the “reasonable time” requirement. 43.     There has, accordingly, been a violation of Article   6 § 1 of the Convention on account of the length of proceedings. APPLICATION OF ARTICLE   41 OF THE CONVENTION 44.     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.” Damage 45.     The applicant claimed 175 Ukrainian hryvnias (UAH) in respect of pecuniary damage, representing lost wages for the period of her detention, and 23,000 euros (EUR) in respect of non-pecuniary damage. 46.     The Government contested those claims, considering that there was no causal link between the violation alleged and the damage claimed and that the claims were in any case excessive. 47.     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, ruling on an equitable basis, it awards the applicant EUR   1,200 in respect of non-pecuniary damage. Costs and expenses 48.     The applicant also claimed UAH 10,692 (about EUR   375) for the costs and expenses incurred before the Court. 49.     The Government submitted that the claim was unsubstantiated. 50.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 250 in respect of proceedings before the Court. Default interest 51.     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, Declares the application admissible; Holds that there has been a violation of Article 6   § 1 of the Convention on account of the length of proceedings; Holds (a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)         EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)       EUR 250 (two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 December 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   Síofra O’Leary Deputy Registrar   President