FIFTH SECTION
CASE OF DROGOBETSKAYA
v. UKRAINE
(Application no.
41662/05)
JUDGMENT
STRASBOURG
3 January
2013
This judgment is final but
it may be subject to editorial revision.
In the case of Drogobetskaya v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Committee composed of:
Boštjan M. Zupančič, President,
Ann Power-Forde,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 4 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 41662/05) 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 Ukrainian national, Ms Natalya Eduardovna Drogobetskaya (“the
applicant”), on 28 February 2003.
The applicant was
represented by Mr V.A. Drogobetskiy, a lawyer practising in Kharkiv. The
Ukrainian Government (“the Government”) were represented by their Agent, Mr Y.
Zaytsev, succeeded by Ms V. Lutkovska, of the Ministry of Justice.
On 27 September 2010
the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1961 and lives in Kharkiv.
On 11 April 2000 the Kyiv District Prosecutor’s
Office of Kharkiv instituted criminal proceedings in respect of the applicant,
along with two other persons, on suspicion of tax evasion and forgery in their
capacity of a private company’s officials.
On 24 April 2000 the applicant was indicted.
Between 30 May 2000 and 30 June 2004 the Kyivskyy
District Court of Kharkiv (“the Kyivskyy Court”) considered the case.
According to the information provided by the Government,
in the course of proceedings the hearings were adjourned twelve times because the
presiding judge was busy with another case and seven times at the request of the
other co-defendants’ lawyers. In addition, there were five adjournments as the
applicant or her lawyer was absent. Finally, hearings did not take place four
times because the prosecutor was absent and three times owing to the absence of
the witnesses. According to the applicant, however, the judge failed to duly
notify the parties of the scheduled hearings on many occasions. Some of the
adjournments, according to her, were caused by the judge’s inability to ensure
the audio-recording of hearings requested by the applicant.
Meanwhile, the applicant lodged numerous
complaints with the higher-level courts about the length of the proceedings. As
indicated in the reply of the Kharkiv Regional Court of Appeal to one of her
complaints, audio-recording equipment was available only in the appellate court
and the first-instance court had therefore to adjust the schedule of hearings
accordingly.
On 30
June 2004 the Kyivskyy Court, at the prosecutor’s petition and in the presence of the applicant’s lawyer, terminated
the proceedings against the applicant as time-barred.
On 8 July 2004 this ruling became final.
THE LAW
I. COMPLAINTS CONCERNING THE LENGTH OF PROCEEDINGS
AND THE LACK OF DOMESTIC REMEDIES IN THAT RESPECT
The applicant complained that the length of the criminal
proceedings had been unreasonable and that there had not been an effective
domestic remedy in that regard. She relied on Articles 6 § 1 and 13 of the
Convention which read as follows in the relevant parts:
“In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal...
Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Admissibility
The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Article 6 § 1 of the Convention
The applicant
maintained that the criminal proceedings against her had lasted unreasonably
long and that the judges who had been in charge of her case at trial had been inactive,
unreasonably postponing hearings while she herself or her lawyer had attended
all the hearings of which they had been duly informed.
The Government contested that argument. They
insisted that the case had been complex, given, in particular, its economic
nature and the involvement of two other accused, as well as numerous witnesses.
The Government also attributed some of the delays to the applicant.
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)
Turning to the facts of the present case, the
Court notes that the period to be taken into consideration began on 11 April
2000 and ended on 8 July 2004, when the court
resolution to terminate the proceedings against the applicant had become final
(see paragraph 11 above). They remained at one level
of jurisdiction around four years and three months.
The Court considers that the proceedings were
important to the applicant. Although the case involved two criminal charges and
three co-accused, it does not appear particularly complex.
As to the conduct of the applicant and authorities,
the Court observes that even if there were delays attributable to the applicant,
they cannot be considered to have decisively contributed to the total duration
of the proceedings. Therefore, the Court considers that the conduct of the
applicant alone cannot justify the overall length of the proceedings. The Court observes in particular that while the pre-trial investigation was completed within two
weeks, it took the domestic court more than four years and two months to try
the case which was ultimately closed as time-bared (see paragraphs 5-7 above).
As regards other delays, the Court observes in this connection that it is the
role of the domestic courts to manage the proceedings before them so that they
are expeditious and effective (see Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 183, ECHR 2006-V and Pilipey v. Ukraine, no. 9025/03, § 31, 18 June 2009).
. 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.
2. Article 13 of the Convention
21. The Court
reiterates that Article 13 guarantees an effective remedy before
a national authority for an alleged breach of the requirement under
Article 6 § 1 to hear a case within a reasonable time (see Kudła
v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). The Court further refers to its finding in the Merit
case about the lack of an effective and accessible remedy under domestic law
for complaints in respect of the length of criminal proceedings (see Merit v. Ukraine, no. 66561/01, § 78-79, 30 March 2004).
There has accordingly also been a breach of Article
13.
II. OTHER COMPLAINTS
The applicant also complained, referring to Articles
1 and 6 §§ 1 and 3 (b), as well as Article 13, of the Convention, on the
allegedly biased conduct of the trial court judges and the lack of her lawyer’s access to the case-file to the
detriment of her legal defence.
Having carefully considered the applicant’s
submissions in the light of all the material in its possession, the Court finds
that, in so far as the matters complained of are within its competence, they do
not disclose any appearance of a violation of the rights and freedoms set out
in the Convention.
It follows that this part of the application
must be declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
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.”
A. Damage
The applicant claimed 255,000 euros (EUR) in
respect of non-pecuniary and EUR 4,500 of pecuniary damage.
The Government contested these claims.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. The Court considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,300
under that head.
B. Costs and expenses
The applicant also claimed EUR 500 for the costs
and expenses.
The Government contested the claim.
Regard being had to the documents in its
possession and to its case-law, the Court rejects the claim for costs and
expenses as unsubstantiated.
C. Default interest
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
1. Declares the applicant’s complaints under
Articles 6 § 1 and 13 of the Convention about the length of the
proceedings and the lack of an effective remedy in that regard admissible and
the remaining complaints inadmissible;
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 13 of the Convention;
4. Holds
(a) that the respondent State is to pay the
applicant, within three months, EUR 1,300 (one thousand three hundred euros),
plus any tax that may be chargeable to the applicant, in respect of
non-pecuniary damage, to be converted into the national currency of Ukraine 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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan
M. Zupančič
Deputy Registrar President
