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FIFTH
SECTION
CASE OF NOSALSKIY v. UKRAINE
(Application
no. 26277/02)
JUDGMENT
STRASBOURG
12
July 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 Nosalskiy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 19 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26277/02) 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 Stanislav Andrianovich Nosalskiy (“the
applicant”), on 13 June 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Valeriya Lutkovska and Mr Yuriy Zaytsev.
- On
15 March 2005 the Court
decided to give notice of the application 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
- The
applicant was born in 1938 and lives in Kharkiv.
- On
23 August 1996 the applicant was charged with aggravated smuggling.
The prosecution's case was that he had arranged for an aircraft to be
sold to a Russian company in breach of the relevant customs rules.
- On
25 December 1996 an investigator of the Kharkiv Regional Department
of the Security Service (Управління
Служби Безпеки
України по
Харківській
області
hereafter “the USBU”) informed the applicant that the
pre-trial investigation had been completed and granted him access to
the case-file.
- On
an unknown date in early February 1997 the investigator drew up the
bill of indictment and submitted it to the Kharkiv Regional
Prosecutor's Office (Харківська
обласна прокуратура,
hereafter “the Prosecutor's Office”) for
approval. On 14 February 1997 the Prosecutor's Office decided that
further investigations were necessary and remitted the case to the
USBU.
- By
July 1997 the investigator had questioned over 40 witnesses. On
25 July 1997 he declared the pre-trial investigation completed, and
allowed the applicant to consult the case-file.
- On 12 August 1997 the Prosecutor's Office sent the
case-file together with the bill of indictment to the Kiyevsky
District Court of Kharkiv (Київський
районний суд
м. Харкова,
hereafter “the Kiyevsky Court”) for trial
proceedings.
- The
trial commenced on 16 October 1997.
- On
1 December 1997, after eight hearings, the Kiyevsky Court
remitted the case for further investigations. On 20 January 1998 the
Kharkiv Regional Court rejected the prosecution's appeal against this
ruling. On 24 June 1998 the Presidium of the Kharkiv Regional Court
dismissed a protest (extraordinary appeal) of the Deputy
Prosecutor of the Kharkiv Region against these decisions.
- On
30 March 1998, in the context of the additional investigation ordered
by the Kiyevsky Court, the applicant's charges were amended to
include a forgery by an official.
- On
1 June 1998 the additional investigation was completed and the
applicant was given access to the case-file. On 3 June 1998 the
investigator sent the bill of indictment to the Prosecutor's Office
for approval. On 24 June 1998 the Prosecutor's Office remitted the
case for further investigations.
- On
10 July 1998 the investigator requested the Russian authorities to
question several witnesses living in Moscow. On 26 August 1998 some
of those witnesses were questioned and the minutes were provided to
the Ukrainian authorities. A similar request for the Russian
authorities to question witnesses living in Khabarovsk, filed on 20
October 1998, was not acted on.
- On
4 November 1998 the investigator ordered an expert examination of the
whether the aircraft was fit to fly.
- On
25 December 1998 the investigator informed the applicant that the
pre-trial investigation in his case was completed. Between that date
and 1 July 1999 the applicant and his co-accused Mr I. had access to
the case file.
- On
20 April 1999 the applicant was additionally charged with abuse of
power.
- On 1 July 1999 the Prosecutor's Office approved the
bill of indictment and transmitted the case to the Kiyevsky Court.
- In the period to 5 July 2001 the court held 20
hearings, examined several motions of the applicant, Mr. I and the
company which had bought the aircraft, which had joined the
proceedings as a civil claimant. Between 15 and 22 June 2001 the
proceedings were suspended due to the applicant's illness.
- On
6 July 2001 Kiyevsky Court remitted part of the case file for further
investigations. The applicant appealed. On 22 January 2002 the
Kharkiv Regional Court of Appeal (Апеляційний
суд Харківської
області, hereafter
“the Court of Appeal”) rejected the applicant's appeal
against this ruling.
- On
18 February 2002 the Kiyevsky Court decided that the remainder of the
case also needed additional investigations.
- On
22 April 2002 the charges against the applicant were amended in
accordance with the new Criminal Code which had entered into force on
1 September 2001.
- On
26 April 2002 the investigator completed the pre-trial investigation
and granted the applicant and his co-accused access to the case file.
On 12 July 2002 the case-file and the bill of indictment were sent to
the Chervonozavodsky District Court of Kharkiv (Червонозаводський
районний суд
м. Харкова
hereafter “the Chervonozavodsky Court”). The judge fixed
the preparatory hearing for 22 August 2002; it was adjourned until 11
September 2002 because Mr I. was ill.
- On
11 September 2002 the Chervonozavodsky Court committed the applicant
for trial and fixed the first hearing on the merits for
28 October 2002.
- Between
October 2002 and November 2003 the trial court held three hearings.
Eight sittings scheduled for this period were cancelled because
investigator or the prosecutor failed to appear. On two occasions the
hearings were adjourned due to the judge's illness and holiday. Two
more sittings were cancelled on account of Mr I.'s and the
applicant's absence.
- Between
December 2003 and June 2004 the proceedings were suspended because
the authorities had not provided the witnesses living outside Kharkiv
with appropriate accommodation during the hearings.
- Between
15 June and 13 October 2004 the trial court held fourteen hearings.
- On 13 October 2004 the Chervonozavodsky Court
acquitted the applicant, having found no corpus delicti in the
imputed actions. The prosecution and the applicant appealed. The
latter sought an acquittal on the ground that there had been no crime
rather than no corpus delicti. The civil claimant also filed
an appeal.
- On 31 March 2005 the Kharkiv Regional Court of Appeal
(hereafter “the Court of Appeal”) decided not to
entertain the prosecution's appeal on the ground that it was not
signed by the prosecutor who had participated in the proceedings
before the first instance court. The appeals of the applicant and the
civil claimant were rejected as unsubstantiated. The same parties
appealed in cassation.
- On 11 April 2006 the Supreme Court quashed the
decision of 31 March 2005 and remitted the case for a fresh
appellate hearing on the ground that the Court of Appeal's refusal to
entertain the prosecutor's appeal had not been reasonable.
- On
1 August 2006 the Court of Appeal granted the prosecutor's appeal,
quashed the judgment of 13 October 2004 and remitted the case to the
Prosecutor's Office for further pre-trial investigations.
- Since
23 January 1997 the applicant has brought seventeen complaints with
higher prosecutions authorities, challenging the conduct of criminal
proceedings in his case.
- The
investigation in the case is still pending.
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. He also complained
under Article 6 that the criminal proceedings against him had been
unfair. Article 6 § 1 of the Convention, in so far as relevant,
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. Alleged unfairness of the proceedings
- In
so far as the applicant complains about the alleged unfairness of the
criminal proceedings brought against him, the Court observes that the
applicant's complaint is premature as the proceedings at issue are
still pending. It therefore rejects this complaint in accordance with
Article 35 § 4 of the Convention.
2. Length of proceedings
a. The applicant's victim status
- The
Government contended that the applicant, as an acquitted
defendant, can no longer claim to be a victim of alleged
violations of the Convention during the proceedings.
- The
applicant disagreed.
- The
Court first notes that the applicant's acquittal has been quashed on
appeal and the criminal proceedings against the applicant are still
pending. In any case an acquittal does not in itself deny the person
concerned the status of a victim in respect of excessive delays (see
Kobtsev v. Ukraine, no. 7324/02, § 44, 4 April
2006 with further references).
- The
Court therefore dismisses this objection.
b. Exhaustion of domestic remedies
- The
Government stated that each action of the investigators in the case
which allegedly protracted the proceedings could have been challenged
by the applicant either in court or before the higher prosecution
authorities. They also maintained that the applicant had had the
right to claim compensation for lengthy proceedings under the 1994
Law “on the procedure for compensation of damage caused to the
citizen by unlawful actions of bodies of inquiry, pre-trial
investigation, prosecutors and courts”, section 2 of which
creates a right to compensation where proceedings have ended by way
of an acquittal or on certain other specified grounds.
- The
applicant considered these remedies ineffective in his case.
- The
Court first notes that the 1994 Law sets up a right to compensation
only where proceedings have ended. As the criminal proceedings
against the applicant are still pending, it is not open to the
applicant to make a claim under the 1994 Law.
- As
regards the applicant's purported opportunity to challenge
investigators' alleged actions or omissions before superior
prosecutors or courts, the Court notes that in several previous cases
it has found these remedies ineffective as the Government had failed
to show how recourse to such proceedings could have remedied the
delays in the investigation of the case (see, for example, Merit
v. Ukraine, no. 66561/01, §§ 62-63 and 65,
30 March 2004 and Kobtsev, cited above, § 49).
It does not find any reason to come to a different conclusion in the
present case. It, therefore, dismisses this objection.
c. Six month period
- The Government stated that the six-month time-limit,
provided by Article 35 § 1 of the Convention started to run on 1
December 1997, when the Kiyevsky Court ordered re-investigation.
- The applicant disagreed.
- When the criminal proceedings were remitted on 1
December 1997, the criminal charges against the applicant had not
been determined. Indeed, they have not been determined to date. If
follows that the six-month time limit did not begin to run on that
date, and has still not begun to run (see Antonenkov and Others v.
Ukraine (no. 14183/02, §§ 33 and 34, 22 November
2005).
This objection is therefore also rejected.
d. General conclusion
- The
Court notes that this complaint is not manifestly ill-founded. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. Period to be taken into account
- The
period to be taken into consideration began only on 11 September
1997, when the recognition by Ukraine of the right of individual
petition took effect. On that date the proceedings had been pending
for a little over one year. The period in question has not yet ended.
It has thus lasted more than nine years during which it was examined
at three instances. It is now pending before the investigator.
2. The reasonableness of the length of the proceedings
- 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)
- The
Government stated that the case was of some complexity. In particular
it related to the smuggling of an object of exceptional value, the
alleged offence had a transnational character, there were two
suspects involved who were charged with several different offences,
and there was a need to order expert opinions and to question 40
witnesses. The applicant did not express any opinion on this point.
- The
Court notes that no particular complexity may be attached to the
legal aspects of the case, nor could the number of suspects pose any
particular difficulty to the authorities. The need to question a
number of witnesses, some of them living abroad and to order an
expert opinion could complicate the case. However, all those
circumstances relate to the period in or before 1998, whereas the
proceedings in the applicant's case continued for over eight years
after that.
- As
regards the conduct of the applicant, the Government submitted that
the proceedings had been suspended on four occasions due to the
applicant and his co-suspect's illness. They also pointed out that
during the proceedings the applicant had consulted the case file for
a total of 179 days and that he had filed a number of complaints and
appeals, challenging different decisions of investigating and
judicial authorities. The applicant disagreed.
- The Court notes that a seven-day delay in proceedings
in June 2001 when the applicant was ill cannot be regarded as having
had a major impact on the total length of the proceedings. As to the
periods when the applicant as consulting the case file and his
applications to higher prosecution and judicial authorities, the
Court notes that he cannot be reproached for having made use of his
procedural rights (see Yorgiyadis v. Turkey,
no. 48057/99, § 32, 19 October 2004).
- As
regards the conduct of the domestic authorities, the Court notes that
the repeated remittals of the applicant's case back to the
investigating authorities for further investigations was the main
reason for the protracted length of the proceedings. Moreover, for
the period from September 2002 to June 2004 the trial court held only
three hearings, the others being cancelled for the reasons mainly
attributable to the authorities.
- 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, for example, Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000-VII, Antonenkov, cited above,
§§ 45-46 and, in particular, Vachev v. Bulgaria,
no. 42987/98, § 96, ECHR 2004 VIII (extracts) and
Pavlyulynets v. Ukraine, no. 70767/01, §
51, 6 September 2005).
- 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 overall 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
- The
applicant claimed 1,600,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government did not express an opinion on the matter.
- 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, it awards the applicant EUR 2,800 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant did not make any claim in this respect. Accordingly, no
award is made under this head.
C. 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 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;
- 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 2,800 (two thousand eight hundred euros) in respect
of non-pecuniary damage, costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable;
(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 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
