FIFTH SECTION

CASE OF MAZURENKO v. UKRAINE

(Application no. 14809/03)

JUDGMENT

STRASBOURG

11 January 2007

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 Mazurenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Mr	 , President,
	Mrs	 ,
	Mr	 ,
	Mr	 ,
	Mrs	 ,
	Mr	 	Mr	  judges,
and Mrs  , Section Registrar,
Having deliberated in private on 4 December 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleg Leonidovich Mazurenko (“the applicant”), on 18 April 2003.
2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
3.  On  the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1941 and lives in the town of Кozelshchina, the Poltava Region, Ukraine.
5.  On 15 September 1998 criminal proceedings were instituted against the applicant on suspicion of theft and corruption. The prosecution's case was that the applicant, a former manager of the Кozelshchina District Consumers' Cooperative (“Козельщинська райспоживспілка”) was involved in official misconduct, namely stealing from the shops under his management.
6.  On 24 September 1998 the Prosecutor's Office of the Кozelshchina District of the Poltava Region (hereafter “the District Prosecutor's Office”) ordered the applicant's detention.
7.  On 8 December 1998 the applicant was released under the obligation not to leave his place of residence .
8.  On the same day the investigator ordered the applicant's suspension from his duties pending the criminal proceedings. Following this order the applicant's employer, the State-owned Joint-Stock Company “Galeshchinske khlibopryimalne pidpryemstvo” suspended the applicant from his duties of the Head of the Board of the company. On 14 April 2003 the Kobylaky District Court dismissed the applicant's complaint against this prosecution's order. The court stated that this issue did not fall within its jurisdiction and had to be examined in the course of the criminal trial. On 14 May 2003 the Poltava Regional Court of Appeal rejected the applicant's appeal against this decision for lack of jurisdiction.
9.  On 20 July 1999  the investigation was completed and the applicant was given access to the case-file.
10.  On 3 September 1999 the case was referred to the Kozelishchinskiy District Court.
11.  On 29 September 1999 the Poltava Regional Prosecutor's Office, following the applicant's request, withdrew the case from the court and remitted it for further investigation.
12.  On 1 October 1999 the investigation was suspended as Mr S., another accused in this case, flew from justice.
13.  On 11 February 2000 Mr S. was found and the proceedings were resumed.
14.  On 24 February 2000 Mr S. escaped and was again placed on the wanted list. The proceedings were suspended.
15.  On 2 June 2000 the Deputy Prosecutor of Poltava Region quashed the decision of 24 February 2000 on the suspension of the proceedings and remitted the case for further investigation.
16.  On 8 June 2000 the investigation was suspended as Mr S. was on the wanted list.
17.  On 1 August 2000 the proceedings were resumed.
18.  On 3 August 2000 the criminal case against Mr S. was closed. On the same day the proceedings against the applicant were suspended due to his illness. The proceedings were subsequently resumed on 25 September 2000.
19.  On 2 October 2000 the investigation was completed and the applicant and his lawyer were given access to the case-file.
20.  On  4 October 2000 the applicant and his lawyer finished consulting the case-file.
21.  On 28 October 2000  the case was referred to the Poltava Regional Court.
22.  On 2 November 2000 the Poltava Regional Court referred the case to the Avtozavodsky District Court.
23.  On 18 December 2000 the trial proceedings commenced.
24.  The court postponed the hearing in order to summon witnesses on several occasions: on 18 and 20 December 2000, on 29 January, 5 and 7 February, 26 March, 23 April and 4 July 2001. The hearing was adjourned twice following the applicant's requests – on 7 August and 12 December 2001.
25.  On 12 December 2001 the hearing was adjourned in order to provide the applicant with an opportunity to prepare his defence with respect to new charges brought against him, namely, falsification of official documents.
26.  On 7 February 2002 the court sentenced the applicant to three years' imprisonment, suspended on probation, for theft.
27.  On 16 June 2002 the Poltava Regional Court of Appeal quashed this decision due to the insufficiency of the pre-trial investigation which could not be remedied during the trial. The Court of Appeal specified, inter alia, the lack of documentary evidence, namely, accounting records, and the failure to question the audit inspectors who had monitored the Cooperative during the period under investigation.
28.  The case-file was received by the District Prosecutor's Office on 30 July 2002, and on 7 August 2002 an investigator was assigned to deal with the case. However, the investigation was delayed until September 2002 due to the illness of the investigator.
29.  During the additional investigation, a number of witnesses were questioned and several audit inspections were ordered.
30.  On 6 December 2002 the applicant unsuccessfully challenged the investigator.
31.  On 26 February 2003 the proceedings were suspended due to the applicant's illness. The proceedings were subsequently resumed on 25 March 2000.
32.  On 17 April 2003 the investigation was completed and the applicant was given access to the case-file. On the same day the applicant f inished consulting the case-file.
33.  On 29 April 2003  the case was referred to the Kozelishinskiy District Court.
34.  The trial proceedings commenced on 8 July 2003. On the same day the hearing was adjourned till 17 September 2003 due to the Judge's vacations.
35.  The court heard the merits of the case on 17, 18, 22 and 30 September, 9, 10, 16, 21 and 24 October and 3 November 2003.
36.  On 24 November and 2 December 2003 the hearing was adjourned due to the failure of a witness to appear.
37.  On 11 December 2003 the District Court sentenced the applicant to three years' imprisonment, suspended on probation, for theft and discharged him both from the criminal liability and from the sentence due to the expiry of the statutory time-limit. On the same day the court issued a separate ruling, indicating that the pre-trial investigation had lasted unreasonably long and had included periods when the proceedings had been suspended for no convincing reason. The court stated that the length of the investigation had also hampered the progress of the trial as the witnesses had had significant problems recalling their testimonies given to the investigators some five years before. The court notified the Poltava Regional Prosecutor of these matters and requested to take the appropriate measures.
38.  On 27 February 2004 the Poltava Regional Court of Appeal, following the prosecution's appeal, quashed the applicant's discharge from the criminal liability, upheld his conviction, three-year probationary sentence and the exemption from serving the sentence.
39.  On 27 January 2005 the Supreme Court rejected the applicant's appeal in cassation.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
40.  The applicant complained that the length of the criminal proceedings against him had been incompatible with the reasonable time requirement, provided 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...”
A.  Admissibility
41.  The Government raised objections regarding exhaustion of domestic remedies similar to those which the Court has already dismissed in the Merit case (see, Merit v. Ukraine, no. 66561/01, §§ 54-67, 30 March 2004). The Court considers that the present objections must be rejected for the same reasons.
42.  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
43. The Court recalls that in assessing the reasonableness of the length of the proceedings in question, it is necessary to have regard to the particular circumstances of the case and the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant (see, for instance, Kudla v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).
1.  Period to be taken into consideration
44.  The parties agreed that the period to be taken into consideration in the present case had begun in September 1998 when the criminal proceedings were instituted against the applicant. The Government maintained that the proceedings ended on 27 February 2004, when the Court of Appeal gave its decision in the case. The applicant disagreed and stressed that the proceedings before the Supreme Court had to be taken into consideration as well.
45.  The Court recalls that the new cassation appeal to the Supreme Court of Ukraine for decisions which were adopted 29 June 2001 affords an individual aggrieved by a court decision a real opportunity to have that decision annulled, and that the cassation appeal must therefore be considered to form part of the chain of domestic remedies (see, Arkhipov v. Ukraine (dec.), no. 25660/02, 18 May 2004). Therefore, the Court agrees with the applicant that the proceedings before the Supreme Court should be included to the period in question. Thus, the proceedings in the applicant's case ended in January 2005; consequently they have lasted six years and four months.
2.  Complexity of the case
46.  The Government maintained that the case was complicated and required examination of a wide range of evidence. The applicant contended that the complexity of the proceedings did not justify their length.
47.  The Court considers that, even though the case was of some complexity, having regard to the financial nature of the crime with which the applicant was charged, voluminous documentary evidence and ten forensic examinations conducted, it cannot be said that this in itself justified the length of the proceedings.
3.  Conduct of the applicant
48.  According to the Government, the applicant is responsible for several periods of delay, pending the investigation and trial, connected to his illness. The Government further mentioned that the applicant three times requested to adjourn the hearing. Finally the Government emphasised that on 29 September 1999 the Poltava Regional Prosecutor's Office had recalled the case from the court and remitted it for further investigation following the applicant's request, thus this period of delay was attributable to him.
49.  The applicant disagreed. He maintained that he was ill only once during the trial, and that the decisions to suspend the investigation due to his illness had been unlawful. The applicant further argued that even though he requested three times to adjourn the hearing for one day, it remained unclear why the court had fixed the hearings at such long intervals. He finally contended that he would not request remittal of the case for a further investigation if there had not been so serious procedural defects in his case.
50.  As concerns suspension of the pre-trial investigation with respect to the applicant's illness, the Court notes that the investigative authorities had to examine many witnesses and appoint forensic examinations, and the applicant's illness could hardly be considered an obstacle for these actions. The Court further notes that, whenever hearings were adjourned, the subsequent hearings were scheduled with excessive delays, which must be imputed, at least in part, to the State authorities (see, Tommaso Palumbo v. Italy, no. 45264/99, § 19, 26 April 2001). Finally the Court considers that the applicant's request to remit the case for a further investigation was not groundless as it had been supported by the Prosecutor's Office (see paragraph 11 above).
51.  Given the above considerations, the Court concludes that there is no evidence before the Court to suggest that the applicant contributed in a significant way to their length.
4.  Conduct of the national authorities
52.  The Government maintained that the authorities had not been responsible for any period of delay, and certain periods of delay had to be attributed to third persons, namely Mr S. who had been on the wanted list.
53.  The applicant disagreed. He stressed that the authorities had not taken appropriate measures to locate Mr S. and that they had been fully responsible for six years' duration of the case.
54.  The Court notes that the hearing of the case was adjourned eight times in order to summon witnesses (paragraph 24 above). In this respect the Court recalls the domestic courts had at their disposal ample machinery to ensure the witnesses' presence in the courtroom, however it does not appear from the case file that the court availed itself of these possibilities (see, mutatis mutandis, Smirnova v. Ukraine, no. 36655/02, § 69, 8 November 2005). As concerns Mr S., the Court points out that he had a possibility to escape after he had already been on the wanted list and had been found. In the Court's view, no appropriate measures were taken to secure his presence. In any event, his behaviour did not exempt the authorities from ensuring that the reasonable time requirement of Article 6 was complied with in respect of the applicant, as the duty to administer justice expeditiously is incumbent in the first place on the competent authorities (see, mutatis mutandis, , no. 44808/98, § 56, 17 December 2002).
55.  The Court further notes three remittals of the case for an additional investigation, which are usually ordered as a result of errors committed by investigative authorities, the repetition of such orders within one set of proceedings discloses a serious deficiency in the prosecution system (see, mutatis mutandis, , no. , § 31, 8 November 2005 and Stoianova and Nedelcu v. Romania, nos. 77517/01 and 77722/01, § 20, ECHR 2005‑...). Furthermore, the failure of the authorities, following years of investigation, to produce to the court a case ready for trial reveals little diligence on their part.
56.  The Court finally recalls that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see, Silin v. Ukraine, cited above, §34).  However, in the Court's opinion the national courts did not act with due diligence, having regard to the applicant's situation.
5.  What was at stake for the applicant
57.  The Court recalls that an accused in criminal proceedings should be entitled to have his case conducted with special diligence and Article 6 is, in criminal matters, designed to avoid that a person charged should remain too long in a state of uncertainty about his fate (see, Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006). The Court considers that much was at stake for the applicant as he suffered a feeling of indeterminacy in respect of his future, bearing in mind that he risked imprisonment (see paragraphs 6, 26 and 37-38 above) and was under an obligation not to leave his place of residence (see paragraph 7).
6.  Conclusion
58.  Having regard to the circumstances of the instant case, the overall duration of the proceedings, their remittals for additional investigation and reconsideration on several occasions, the Court concludes that no sufficient grounds of justification have been adduced and that the length of the applicant's proceedings was excessive.
59.  There has accordingly been a violation of Article 6 § 1.
II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
60.  
61.  Having regard to its findings under Article 6 § 1 (see paragraphs 57‑58 above), the Court concludes that this complaint is admissible, but considers that it is not necessary to rule whether, in this case, there has been a violation of Article 13 of the Convention (see, Kukharchuk v. Ukraine, no. 10437/02, §§ 39-40, 10 August 2006).
III.  OTHER 
62.  The applicant finally complained about his allegedly unlawful suspension from his duties and lack of access to a court in this respect. He invoked Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.
63.  The Court notes at the outset that the applicant worked in a State-owned company. Even assuming that this complaint falls within the scope of Article 6 § 1 (see, Pellegrin v. France [GC], no. 28541/95, §§ 70-71, ECHR 1999‑VIII), the Court finds that in the light of all the material in its possession, and insofar 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.
64.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
65.  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
66.  The applicant claimed 11,955.25 euros (EUR) in respect of pecuniary damage and loss of income, and EUR 123,000 in respect of non-pecuniary damage.
67.  The Government contended that the applicant's claim was exorbitant and unsubstantiated, and that the finding of a violation would constitute sufficient just satisfaction in this case.
68.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained non-pecuniary damage as regards the length of the criminal proceedings against him and imposed obligation not to leave his place of residence. The Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant the sum of EUR 800 in respect of non-pecuniary damage.
B.  Costs and expenses
69.  The applicant claimed EUR 941.78 for costs and expenses incurred in the Convention proceedings. He presented a contract with his lawyer for the above sum.
70.  The Government maintained that only those expenses which were actually and necessarily incurred should be awarded, and left this issue at the Court's discretion.
71.  The Court reiterates that, in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII).
72.  The Court considers that these requirements have not been fully met in the instant case. In particular, it notes that the case was not particularly complex and the applicant was not required to be legally represented. Moreover, some of his complaints were declared inadmissible. Regard being had to the information in its possession and to the above considerations, the Court awards the applicant EUR 300 for costs and expenses.
C.  Default interest
73.  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
1.  Declares the complaint under Articles 6 § 1 and 13 of the Convention concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there is no need to examine separately the applicant's complaint under Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) in respect of non-pecuniary damage and EUR 300 (three hundred euros) for costs and expenses, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on 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 amounts 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 11 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	  
	Registrar	President