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FIFTH
SECTION
CASE OF GALAT v. UKRAINE
(Application
no. 716/05)
JUDGMENT
STRASBOURG
20 May
2010
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 Galat v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 716/05) 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 Valentina Alekseyevna Galat (“the
applicant”), on 22 December 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
16 June 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in the town of Kremenchug,
Ukraine.
- At
the material time the applicant worked as an accountant at the
Cherkasytransgas State company.
- In
May 1998 the authorities revealed a shortfall of 70,000
Ukrainian hryvnyas (UAH) in the Cherkasytransgas accounts. On 30
November 1998 the local police instituted criminal proceedings
against the applicant for embezzlement of State funds. On 20 January
1999 criminal proceedings for forgery and negligence were also
instituted.
- On
26 January 1999 criminal proceedings against M. were instituted in
connection with the same episode of embezzlement. On 1 April 1999
criminal proceedings against the applicant and M. were joined.
- On 21 September 1999 the applicant gave a written
undertaking not to abscond.
- The
criminal proceedings against M. were terminated on 22 October 1999.
- On
1 December 1999 the applicant's case was sent to the court.
- On
18 April 2000 the Kremenchug Court found the applicant guilty of
embezzlement of State funds and sentenced her to ten years'
imprisonment. The court also ordered confiscation of any property
belonging to the applicant.
- On
the same day the applicant was imprisoned.
- On
7 June 2000 the Poltava Regional Court (since June 2001 the Poltava
Regional Court of Appeal) quashed this judgment and remitted the case
for additional investigation.
- On
15 August 2000 the applicant was released.
- In
the course of the investigation several expert reports on
handwriting, accountancy and technical criminal questions were
submitted.
- By
11 January 2001 the additional investigation was completed and the
case was transferred to the court.
- On
3 December 2003 the Kremenchug Court found the applicant guilty of
embezzlement and sentenced her to five years' imprisonment. The court
also disqualified the applicant from holding positions of financial
responsibility for three years and ordered confiscation of any
property belonging to her.
- On
12 March 2004 the Poltava Regional Court of Appeal reduced the
applicant's sentence to three years and six months' imprisonment.
- On
11 November 2004 the Supreme Court of Ukraine lifted the three year
disqualification from holding positions of financial responsibility
and upheld the remainder of the decisions of 3 December 2003 and 12
March 2004.
- Subsequently
the applicant requested the Supreme Court of Ukraine to review the
case under the extraordinary review procedure but to no avail.
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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 30 November 1998 when
the criminal proceedings against the applicant were instituted and
ended on 11 November 2004 when the Supreme Court adopted a final
decision in the case. It thus lasted almost six years for three
levels of jurisdiction.
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)
- 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).
- 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 5 § 1 of the
Convention that her arrest on 18 April 2000 was unlawful. Referring
to Article 6 § 1 of the Convention, the applicant complained of
the courts' assessment of evidence and interpretation of the law and
challenged the outcome of the proceedings.
- Having
carefully examined the applicant's submissions in the light of all
the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that
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 5 §§ 3 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 UAH 63,265 (about 5,640 euros, EUR) in respect of
pecuniary damage. This amount included, inter alia, the
applicant's legal expenses. She further claimed UAH 1,000,000 (about
EUR 89,115) in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court will consider the applicant's claim for legal expenses
separately (see paragraph 36).
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects the
applicant's claim for pecuniary damage. On the other hand, ruling on
an equitable basis, it awards the applicant EUR 600 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant, who was not represented before the Court, claimed UAH
20,000 (about EUR 1,785) for her legal expenses incurred before the
national courts and the Court. In support she provided a contract on
legal assistance concluded with a detective agency under which the
latter took on an obligation to draft
the observations in reply to the Government's observations. The
contract contains no provision about the amount to be paid for the
legal services provided to the applicant. However, the applicant
provided a receipt evidencing payment of UAH 5,000 (about EUR 446) to
the agency for these services.
- The
Government contested the claim.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings.
The Court considers it reasonable to award the sum of EUR 200 for the
proceedings before the Court and rejects the remainder of her claims
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 under Article 6 § 1
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 600 (six
hundred euros) in respect of non-pecuniary damage and EUR 200 (two
hundred euros) for expenses in the proceedings before the Court, plus
any tax that may be chargeable to the applicant, 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 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
