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FIFTH
SECTION
CASE OF NICHITAYLOV v. UKRAINE
(Application
no. 36024/03)
JUDGMENT
STRASBOURG
15 October 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Nichitaylov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36024/03) 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 Gennadiy Ivanovich
Nichitaylov (“the applicant”), on 27 September 2003.
- The
applicant was represented by Mrs V.I. Nichitaylova, his wife. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
- The
applicant alleged, in particular, that the criminal proceedings
against him were unreasonably long.
- On
22 September 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Sukhodolsk.
- The
applicant worked as a foreman in the Barkov Mine in the Lugansk
region.
- On
11 March 2000 an explosion in the mine caused the death of eighty
miners. Another seven individuals, including the applicant, sustained
injuries. As a result of those injuries the applicant's sight and
hearing were impaired, and the condition gradually developed to the
stage of complete blindness and deafness.
1. Criminal proceedings against the applicant
- On
17 August 2000 the applicant and four other officials of the mine,
who were responsible for the observance of work safety regulations,
were charged with negligence.
- On
6 July 2001 the Krasnodon City Court found the applicant guilty of
negligence and sentenced him to four years' imprisonment.
- On
18 September 2001 the Lugansk Regional Court of Appeal upheld the
judgment of the first-instance court with minor amendments.
- On
1 August 2002 the Supreme Court of Ukraine quashed the decisions of
the lower courts, considering the punishment too lenient, and
remitted the case for fresh consideration.
- In
November 2002 the new hearing started in the first-instance court.
- During
this new examination of the case the applicant's lawyer and
representative submitted a request for the severance of the criminal
proceedings against the applicant due to a violation of his right to
a defence at the initial stage of the investigation, when he was not
legally represented although such representation was obligatory due
to his disabilities. On 13 May 2003 the court allowed this
request and remitted the criminal case against the applicant for a
new pre-trial investigation.
- On
14 August 2003 the applicant was once again charged with negligence.
- In
November 2003 the Krasnodon City Court ordered two forensic
examinations to assess the applicant's sanity, his ability to
understand the ongoing events and to participate in the pre-trial
investigation and the trial itself.
- The
forensic examinations conducted in February and June 2004 established
the partial insanity of the applicant and his inability to understand
the ongoing events and to participate in the proceedings.
- On
22 June 2004 the Krasnodon City Court discharged the applicant from
criminal liability due to changed circumstances, brought about by his
state of health, and to the fact that he was not a danger to society.
- The
applicant's representative appealed against this decision,
considering that the criminal case should be terminated on
exonerative grounds.
- On
26 October 2004 the Lugansk Regional Court of Appeal quashed the
judgment of 22 June 2004 and remitted the case for fresh
consideration.
- On
15 March 2005 the Krasnodon Court referred the case for additional
investigation.
- On
30 August 2005 the Lugansk Regional Court of Appeal upheld the
decision of the first-instance court.
- On
3 November 2005 the pre-trial investigation in the case against the
applicant was suspended due to the serious illness of the accused in
accordance with Article 206 of the Code of Criminal Procedure.
- On
8 February 2008 the proceedings were resumed.
- On
13 February 2008 the investigator questioned an expert and on 15
February 2008 the proceedings were suspended again.
- On
12 January 2009 the investigator reopened the proceedings and ordered
an additional forensic medical examination of the applicant. The
examination, conducted between 16 and 21 January 2009, confirmed the
complete blindness and deafness of the applicant and concluded that
he would not recover.
- On
21 February 2009 the proceedings were suspended again.
2. Civil proceedings for compensation
- On
15 October 2001 the applicant instituted proceedings in the Krasnodon
City Court against the Barkov mine, seeking compensation for damage
as a result of the accident and subsistence payments.
- On
22 January 2002 the court rejected the applicant's claim. This
decision was not appealed against and became final.
- On
20 February 2003 the applicant requested the same court to review
this civil case in the light of newly discovered circumstances.
- On
10 April 2003, upon the defendant's request, the court suspended the
review proceedings due to the pending criminal proceedings.
- On
24 November 2006 the Krasnodon City Court refused to reopen the
proceedings in the light of newly discovered circumstances, having
found that there were no such circumstances in the case.
II. RELEVANT DOMESTIC LAW
Code of Criminal Procedure
- Article
206 of the Code provides, insofar as relevant, as follows:
Grounds and procedure for suspension of proceedings
“Pre-trial investigation in a criminal case shall
be suspended:
...
2) when a psychiatric or other serious illness of the
accused prevents completion of the proceedings in the case;...”
THE LAW
I. LENGTH OF PROCEEDINGS
- The
applicant complained under Article 3 of the Convention about the
length of the criminal proceedings against him. The Court considers
that Article 6 § 1 of the Convention is the relevant provision
for this complaint. This provides, 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 ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this 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
- The
period to be taken into consideration began on 17 August 2000 and
lasted until 3 November 2005, when the proceedings were suspended due
to the serious illness of the accused. By the time of the suspension
the proceedings had thus lasted five years, two months and eighteen
days at three levels of jurisdiction. The Court notes that the
proceedings in the applicant's case have never been formally
terminated but have been suspended for what seems to be an indefinite
period of time, given that the reason for their suspension was the
applicant's lack of fitness to stand trial due to his complete and
permanent blindness and deafness. Although the hypothetical
possibility of resuming the proceedings exists, there seems to be no
intention at present to continue them (see and compare Antoine v.
the United Kingdom (dec.), no. 62960/00, ECHR 2003-VII). On two
occasions, in February 2008 and January 2009, the proceedings were
reopened for a total period of sixteen days, but on both occasions
the reopening was aimed at confirming the grounds for suspension,
namely, the unfitness of the applicant to participate in any further
proceedings. Therefore, for the purposes of the Convention, the
criminal proceedings against the applicant lasted about five years
and three months.
- 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 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).
- 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).
- 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. In
particular, the Court notes the remittals of the case for
reconsideration due to procedural shortcomings, whereas in its
opinion, in view of the quickly deteriorating health of the applicant
the authorities should have proceeded with particular diligence,
given the foreseeable risk of losing any prospects for completing the
proceedings were the applicant to become permanently unfit to stand
trial. This was exactly what happened in the instant case (see
paragraphs 11 and 22 above). Having regard to the circumstances of
the case and 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
- The
applicant complained about a violation of Article 6 § 3 (a) and
(c), because he was not aware of the charges against him for a long
time and did not have defence counsel at the initial stage of the
proceedings, even though his health conditions warranted such
representation. He further complained, without giving any further
details, that the criminal and civil proceedings in his case had been
unfair.
In so
far as the applicant complained of a violation of his right to a
defence and that there had been a failure to ensure he understood the
charges against him, it should be noted that the domestic courts
acknowledged these procedural violations and referred the case for an
additional investigation for this very reason. Therefore, the
applicant could no longer claim to be a victim with respect to this
complaint. It follows that this complaint is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention (see, mutatis mutandis, Ponomaryov v.
Ukraine, no. 3236/03, § 55, 3
April 2008, not yet final).
The
Court has examined the remainder of these complaints of the applicant
as submitted by him. However, in the light of all the material in its
possession, and in so far as the matters complained of were 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
Done in English, and notified in writing on 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
