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FIFTH
SECTION
CASE OF FEDKO v. UKRAINE
(Application
no. 17277/03)
JUDGMENT
STRASBOURG
12
June 2008
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 Fedko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Volodymyr
Butkevych,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 20 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 17277/03) 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 Dmitriy Alekseyevich Fedko (“the
applicant”), on 15 May 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
4 December 2006 the
Court declared the application partly inadmissible and 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
- The
applicant was born in 1972 and lives in Uman.
- In
summer 2000 Mr Y. Z., the applicant’s acquaintance,
issued the applicant with a power of attorney to represent his
interests in connection with criminal proceedings instituted against
several individuals, who had stolen his shoes and cash. In this
capacity the applicant participated in Mr Y. Z.’s
discussions with relatives of Ms Y. V., one of the
suspects, who were seeking to negotiate a settlement. Subsequently
the relatives of Ms Y. V. accused Mr Y. Z. and
the applicant of extorting money from them to pay the law enforcement
authorities to discontinue proceedings against Ms Y. V.
- On
20 July 2000 criminal proceedings were instituted against
Mr Y. Z. on suspicion of soliciting a bribe. These
proceedings were joined with those concerning the larceny of his
possessions.
- Within
the framework of these proceedings, on 1 September 2000 the
applicant was charged of being an accomplice to Mr Y. Z. On
an unspecified date he was placed under an undertaking not to
abscond.
- In October 2000
the investigation was completed and the applicant was committed to
trial before the Uman Court (Уманський
міський суд).
- On
6 February 2001 the Uman Court ordered a forensic expert assessment
at the applicant’s request and suspended the proceedings
pending its outcome. The court further remanded the applicant in
custody, finding that he might interfere with the investigation.
- On
21 June 2001 the expert assessment was produced to the
court.
- On
9 November 2001 the Uman Court convicted the applicant and Mr Y. Z.
of fraud and soliciting a bribe, sentencing the applicant to four
years’ imprisonment and exempting him from prison under
amnesty. On the same day the applicant was released from detention
under an undertaking not to abscond.
- On
15 January 2002 the Cherkasy Regional Court of Appeal (Апеляційний
суд Черкаської
області)
quashed the judgment and remitted the case for fresh
consideration.
- On
13 November 2002 the Uman Court remanded the applicant in
custody.
- On
17 January 2003 the Uman Court remitted the case for
additional investigation and released the applicant under an
undertaking not to abscond. The prosecution appealed.
- On
18 March 2003 the Regional Court quashed the ruling of
17 January 2003 and remitted the case to the first-instance
court for consideration on the merits.
- On
6 June 2003 the Uman Court convicted Mr Y. Z. and
the applicant of fraud and soliciting a bribe, sentenced them to
three years’ restriction of freedom and exempted them from
prison under amnesty.
- On
23 December 2003 the Regional Court quashed the judgment and remitted
the case for additional investigation, citing numerous procedural
omissions in the course of investigation and trial. In particular,
the court pointed out that no formal criminal proceedings had been
instituted against the applicant and so the charges brought against
him within the framework of proceedings against Mr Y. Z.
were unlawful. It further found that the applicant had been placed in
custody without sufficient grounds, that the trial court had failed
to take due note of several of his requests and that the case file
contained unsigned procedural documents. On the same date the court
issued a separate ruling bringing the above-mentioned omissions to
the attention of the Cherkasy Regional Prosecutor and the President
of the Cherkasy Regional Council of Judges. The court ordered that
the applicant remain under an undertaking not to abscond.
- On
2 March 2004 the investigative authorities suspended the
investigation concerning the larceny of
Mr Y. Z.’s possessions on account of inability to
determine the identity of the perpetrators. By July 2007 no
further procedural actions had ensued. It is unclear whether the
applicant has been released from the undertaking not to abscond.
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...”
A. Admissibility
- The
Government raised objections, contested by the applicant, 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.
- The
Court notes that the above-mentioned 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 Court reiterates that the period to be taken into
consideration in determining the length of criminal proceedings
begins with the day on which a person is “charged” within
the autonomous and substantive meaning to be given to that term. It
ends with the day on which a charge is finally determined or the
proceedings are discontinued (see Rokhlina v. Russia, no.
54071/00, § 81, 7 April 2005, and Antonenkov and Others
v. Ukraine, no. 14183/02, §§32-33, 22
November 2005).
- Turning
to the facts of the case, the Court notes that the applicant was
charged with a criminal offence on 1 September 2000 and
that by July 2007 this charge had not been determined. The
proceedings had thus lasted by that date nearly seven years for two
levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of these
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
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, Antonenkov and Others, cited
above, § 45; Ivanov v. Ukraine, no. 15007/02,
§§ 74-75, 7 December 2006; and Benyaminson
v. Ukraine, no. 31585/02, § 104, 26 July 2007).
- 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
- The
applicant claimed, without providing any supporting materials,
19,058 euros (EUR) in respect of pecuniary damage representing
the amount of earnings allegedly lost on account of the fact that he
was under criminal investigation. In addition, he claimed EUR 100,000
in respect of non-pecuniary damage.
- The
Government submitted that these claims were exorbitant and
unsubstantiated.
- 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, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 3,200 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the costs and expenses
incurred before the domestic courts and EUR 500 for those
incurred before the Court. He presented no documents to support these
claims.
- The
Government submitted that these claims were wholly unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court finds that these requirements
have not been met in the present case. It therefore rejects the claim
for costs and expenses.
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 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,200
(three thousand two hundred euros), plus any tax that may be
chargeable, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
