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FIFTH
SECTION
CASE OF ORLOV v. UKRAINE
(Application
no. 5842/05)
JUDGMENT
STRASBOURG
15
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Orlov 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 22 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 5842/05) 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
Polish national, Mr Aleksandr Aleksandrovich Orlov (“the
applicant”), on 7 February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mr Yuriy Zaytsev and Ms Valeria Lutkovska, of the
Ministry of Justice.
- On
27 April 2010 the
Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of the proceedings to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Odessa.
- On
13 April 2000 the police detained him on suspicion of illicit
possession of drugs. On 19 April 2000 the applicant was released from
detention. Throughout the ensuing criminal proceedings he has
remained on a written undertaking not to abscond.
- On
1 September 2000, following the completion of the pre-trial
investigations, the case was referred to the Zhovtnevyy District
Court of Odessa, which on 31 January 2003 absolved the applicant for
lack of proof against him. On 22 April 2003 the Odessa Regional Court
of Appeal (“the Court of Appeal”) quashed the above
judgment for procedural breaches and remitted the case for retrial.
- Between
22 January and 15 December 2004 the proceedings were suspended as the
applicant absconded and his whereabouts were unknown.
- On
13 April 2006 the Prymorskyy District Court of Odessa (“the
Prymorskyy Court”), to which the case was transferred, found
the applicant guilty as charged, sentenced him to one year’s
imprisonment and exempted him from the sentence as the charges
against him became time-barred. On 20 June 2006 the Court of Appeal
quashed that judgment for procedural breaches and remitted the case
for retrial.
- On 12 June 2007 the Prymorskyy Court discontinued the
criminal proceedings against the applicant as the charges against him
became time barred. On 18 September 2007 the Court of
Appeal quashed the above decision for procedural breaches and
remitted the case for retrial. The proceedings are still pending
before the Prymorskyy Court.
- In
the course of the proceedings fifty-eight hearings have been
adjourned due to the applicant’s, his lawyer’s and the
witnesses’ failure to appear or upon the applicant’s or
his lawyer’s requests. These delays attributable to the
applicant have protracted the proceedings by three years and eight
months approximately. Seven hearings have been adjourned due to the
absence of the judges. Eighteen hearings have been adjourned due to
the witnesses’ failure to appear, in respect of whom the courts
have on a number of occasions applied compulsory summonses.
Twenty-seven hearings have been adjourned due to the absence of the
Polish interpreter, on whose presence the applicant has insisted,
even though the domestic courts have established that the applicant
has been fully conversant in the language of the proceedings. Three
expert examinations have been ordered and have lasted for about two
months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
proceedings had been 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 ...”
- The
Government contested that argument stating that the case had been
complex and that the applicant had considerably contributed to the
length of the proceedings.
- The
period to be taken into consideration began on 13 April 2000 and has
not yet ended. Thus, the proceedings have lasted for eleven years and
five months before two judicial instances.
A. Admissibility
- 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 it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- 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 its
complexity, the conduct of the applicant and the relevant authorities
(see, for instance, Pélissier and
Sassi v. France [GC], no. 25444/94, §
67, ECHR 1999-II). It also recalls that an
accused in criminal proceedings should be entitled to have his case
conducted with special diligence, having a particular regard to any
restrictions on liberty imposed pending the conclusion of the
proceedings (see, for instance, Doroshenko
v. Ukraine, no. 1328/04, § 41,
26 May 2011).
- Turning
to the circumstances of the case, the Court considers that the
subject-matter of the criminal proceedings has not been complex. As
to the conduct of the applicant, the Court agrees with the Government
that he has delayed the proceedings (see paragraphs 7 and 10 above).
However, those delays alone do not explain the overall duration of
the still pending proceedings in the comparatively simple criminal
case. In particular, as far as the conduct of the authorities is
concerned, the Court notes three remittals of the case for retrial
(see paragraphs 6, 8 and 9 above), the period of the examination of
the case by the Prymorskyy Court (see paragraph 9 above) and the
numerous adjournments of the hearings due to the judges’,
witnesses’ and the interpreter’s absence (see paragraph
10 above). As for the adjournments of the hearings due to the
witnesses’ failure to appear, the Court notes that, even
though the courts have on a number of occasions applied compulsory
summonses on those witnesses, they have 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
have ever considered applying them. Nor have the applied summonses
seemed to have any effect (see Kobtsev
v. Ukraine, cited above, § 71).
As for the adjournments of the hearings due to the interpreter’s
absence, the Court notes that those adjournments have been made
despite the fact that the domestic courts have established
that the applicant has been fully conversant in the language of the
proceedings. The Government did not explain the necessity of such
adjournments. The Court thus concludes that the
main responsibility for the length of the proceedings has rested with
the State.
- 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.
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. 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.”
A. Damage, costs and expenses
- The
applicant claimed 3,000 euros (EUR) in respect
of non-pecuniary damage. He made no claim in respect of costs and
expenses.
- The
Government contested the claim for non-pecuniary damage.
- The
Court considers that the applicant must have
sustained non-pecuniary damage on account of the length of the
criminal proceedings. Ruling on an equitable basis, it awards him the
full amount claimed.
B. Default interest
- 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
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months, EUR 3,000 (three thousand 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M.
Zupančič Deputy Registrar President
