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FIFTH
SECTION
CASE OF
ORUDZHEV v. UKRAINE
(Application
no. 3080/06)
JUDGMENT
STRASBOURG
21
December 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Orudzhev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait
Maruste,
President,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 3080/06) 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 Fikrat Enver Ogly Orudzhev (“the applicant”),
on 22 December 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
24 November 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol no. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Mykolayiv.
1. Criminal proceedings against the applicant
- On
21 February 2001 the prosecutors instituted criminal proceedings
against the applicant, co-founder of a private company S., on
suspicion of embezzlement. In particular, the applicant was accused
of having misappropriated the funds of the company S.
- On
21 May 2001 the applicant was charged with embezzlement. He gave an
undertaking not to abscond.
- On
27 July 2001 the prosecutors completed the investigations, issued an
indictment and sent the case to the Bilozerka Court for trial.
- On
10 September 2001 the prosecutors refused the applicant's request to
institute criminal proceedings against M., a co-founder of the same
company, on charges of embezzlement of the company's property.
- On
22 October 2001 the Bilozerka Court found the applicant guilty of
embezzlement and sentenced him to two years' imprisonment and a
prohibition on holding managerial positions for two years. It ordered
the applicant's placement in detention pending the judgment's entry
into force.
- On
26 February 2002 the Kherson Regional Court of Appeal quashed the
judgment of 22 October 2001 and sent the case for additional
investigations. It found that the prosecutors and the first-instance
court had failed to investigate and assess all the circumstances of
the case and that the court had not provided the applicant with a
translation of the judgment. The Court of Appeal also ordered the
applicant's release.
- On
1 July 2002 the prosecutors changed the charges against the applicant
and accused him of arbitrary behaviour.
- On
21 October 2002 the Deputy Prosecutor of the Kherson Region quashed
the ruling of 1 July 2002 and stated that the charges against the
applicant should be qualified as embezzlement.
- Between
29 November 2002 and 28 March 2005 the applicant was put under an
undertaking not to abscond.
- On
17 December 2003 the prosecutors re-qualified the charges against the
applicant as arbitrary behaviour.
- On
28 March 2005 the Bilozirka Court discontinued the criminal
proceedings against the applicant for the absence of a victim's
complaint.
- On
26 July 2005 the Kherson Regional Court of Appeal quashed the
decision of 28 March 2005. It found that the criminal case on charges
of arbitrary behaviour should be terminated, that the case against
the applicant should be examined on the charges of embezzlement and
ordered further investigation.
- On
6 September 2005 and 16 February 2006 the Supreme Court left the
applicant's appeal in cassation without examination as the decision
of 26 July 2005 was not subject to appeal in cassation.
- On
8 February 2006 the prosecutors discontinued the criminal proceedings
on charges of embezzlement for lack of proof.
- On
27 March 2006 the Prosecutor General's Office quashed the decision of
8 February 2006 and ordered further investigations.
- On
12 July 2006 the Pecherskyy District Court of Kyiv quashed the
decision of 27 March 2006 and upheld the decision of 8 February 2006.
- On
2 June 2007 the prosecutors discontinued the proceedings instituted
against the applicant on suspicion of arbitrary behaviour.
2. Civil proceedings
- On
29 January 2001 the applicant lodged a claim with the Bilozirka Court
against M. and S. seeking the division of the property of the
company S. and the recovery of his property share.
- On
10 January 2002 the Bilozirka Court rejected the applicant's claims.
- On
18 June 2003 and 24 September 2004, respectively, the Kherson
Regional Court of Appeal and the Supreme Court dismissed the
applicant's appeals and upheld the judgment of 10 January 2002.
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that after communication of the case the applicant
introduced new complaints concerning the criminal proceedings against
him. In particular, he complained under Article 3 about the
conditions of his pre-trial detention and under Article 2 of Protocol
No. 4 that he had been unlawfully put under the undertaking not to
abscond.
- In
the Court's view, these new complaints are not an elaboration of the
applicant's original complaints, on which the parties have commented.
The Court therefore considers that it is not appropriate now to take
these matters up separately (see Piryanik
v. Ukraine, no. 75788/01, § 20,
19 April 2005). They will be dealt with in a separate
application.
II. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- 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. They submitted that the case at
issue had been complex and it had required the investigators to
perform a number of investigative actions. They further maintained
that by failing to appear before the courts the applicant and his
lawyer had contributed to the length of the proceedings and that
there had been no delays attributable to the State authorities.
- The
Court notes that the period to be taken into consideration began on
21 February 2001 and ended on 2 June 2007. It thus lasted six years
and three months.
A. Admissibility
- 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
- 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). It further notes that an
accused in criminal proceedings should be entitled to have his case
conducted with special diligence (see Nakhmanovich v.
Russia, no. 55669/00, § 89, 2 March
2006).
- Turning
to the facts of the present case, the Court notes that the criminal
case in question was not particularly complex. It concerned charges
of misappropriation of funds and did not involve any complicated
factual or legal issues and the applicant was the only defendant in
the case.
- The
Court further notes that despite the lengthy investigations (about
six years in total) the charges against the applicant were eventually
dropped for lack of evidence. Although there might have been delays
caused by the applicant's or his lawyer's behaviour, as suggested by
the Government, the Court finds that the
primary responsibility for the excessive length of the proceedings
rested with the domestic 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 Pélissier and Sassi, cited above; and
Polishchuk v. Ukraine, no. 21231/04, §§ 31-32,
15 October 2009).
- 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.
III. OTHER COMPLAINTS
- The
applicant further complained under Article 5 § 1 (a) and (c),
Article 5 §§ 2, 4 and 5 of the Convention of his unlawful
detention. He also alleged a violation of Article 6 §§ 2, 3
(a) and (e), Articles 13, 14 and 17 of the Convention and Article 2 §
1 of Protocol No. 7, stating that the proceedings had been unfair and
complained that contrary to Article 3 of Protocol No. 7 the State
authorities had not compensated him for the criminal case unlawfully
instituted against him. The applicant complained under Article 1 of
Protocol No. 1 about the damage allegedly caused to his company and
his loss of earnings as a result of the criminal proceedings against
him and submitted that the State authorities had allegedly failed to
protect his property.
- In
the light of the materials in its possession, the Court finds that
the applicant's complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
IV. 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 25,000,000 euros (EUR) in respect of pecuniary
damage, 41,888 Ukrainian hryvnias (UAH)
and EUR 5,000,000 in compensation for the damage allegedly caused to
his health and UAH 11,244,501
in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage and the damage allegedly caused to the
applicant's health; it therefore rejects these claims. On the other
hand, the Court considers that the applicant must have sustained
non-pecuniary damage on account of excessive length of the criminal
proceedings. Ruling on an equitable basis, it awards him EUR 1,400
under that head.
B. Costs and expenses
- The
applicant also claimed UAH 72,219.9
for the costs and expenses incurred in the course of the domestic
proceedings and UAH 393.71
for those incurred before the Court.
- The
Government left the matter related to the expenses incurred before
the Court to the Court's discretion. They contested the remainder of
the claims.
- The
Court notes that the applicant provided relevant supporting documents
for the amount of EUR 36 he had paid for corresponding with the
Court. It therefore awards the applicant this amount 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
1. Declares the complaint
under Article 6 § 1 concerning the 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,
EUR 1,400 (one thousand four hundred euros) in respect of
non-pecuniary damage and EUR 36 (thirty-six euros) for costs and
expenses, plus any tax that may be chargeable, 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 amounts 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 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste Deputy Registrar President
