FIFTH SECTION

CASE OF KYRYLYUK v. UKRAINE

(Application no. 32241/07)

JUDGMENT

STRASBOURG

6 October 2011

This judgment is final but it may be subject to editorial revision.

In the case of Kyrylyuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Ganna Yudkivska,
	Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 13 September 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 32241/07) 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 Viktor Ivanovych Kyrylyuk (“the applicant”), on 14 June 2007.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.
3.  On 12 July 2010 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
4.  The applicant was born in 1972.
5.  On 24 May 2005 the police instituted criminal proceedings against him on suspicion of fraud. Subsequently, additional charges were brought against the applicant (unlawful acquisition of a vehicle, money laundering and forging documents). Since 6 September 2005, he has remained in detention on remand.
6.  Following the completion of the pre-trial investigation, on 24 March 2006 the case was transferred to the Solomyanskyy District Court of Kyiv, which on 24 November 2008 delivered a judgment.
7.  On 27 April 2010 the Kyiv City Court of Appeal quashed that judgment and remitted the case for fresh examination to the Solomyanskyy Court, before which the proceedings are still pending.
8.  According to the Government, in the course of the proceedings fifty four witnesses and four victims were interrogated, questioned or confronted, some of them repeatedly. This took the authorities about three months in total. Seven forensic examinations were ordered and lasted for about five months in total. Nine hearings were adjourned due to the applicant’s and two other co-defendants’ representatives’, victims’ and witnesses’ failure to appear. The applicant disagreed stating that his representative had not been informed of the hearings which he had not attended. One hearing was adjourned on the applicant’s request. Thirty further hearings were adjourned, mainly because the defendants were not escorted to the court, due to the witnesses’ or prosecutor’s failure to appear or because the judge was absent. On several occasions the courts issued compulsory summonses for witnesses.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
9.  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 ...”
10.  The Government contested that argument stating that the case had been complex, that its consideration had been complicated by a number of participants and that the applicant had contributed to the overall length.
11.  The period to be taken into consideration began on 24 May 2005 and has not yet ended. The proceedings have thus far lasted for about six years and one month before two judicial levels.
A.  Admissibility
12.  The Court notes that the application 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
13.  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). Special diligence to administer justice expeditiously is required from the domestic courts when the applicant is held in custody during the proceedings (see, for instance, Yurtayev v. Ukraine, no. 11336/02, § 37, 31 January 2006).
14.  Turning to the circumstances of the case, the Court notes that the case has not been particularly complex. As to the number of participants, they have been interrogated, questioned and confronted within a relatively short period of time (see paragraph 8 above). The applicant’s conduct does not appear to have significantly contributed to the length of the proceedings. On the other hand, the Court is of the opinion that the main delays have been caused by the lengthy examination of the case by the Solomyanskyy Court (see paragraph 6 above) and by thirty adjournments of the hearings (see paragraph 8 above). In the latter respect, it observes that, even though the courts several times issued compulsory summonses for witnesses who failed to appear, they also had at their disposal other mechanisms to ensure the witnesses’ presence in the hearings (see Kobtsev v. Ukraine, no. 7324/02, § 31, 4 April 2006). It was not suggested by the Government that the courts had ever considered applying them. Nor did the majority of the compulsory summonses seem to have any effect (see Kobtsev v. Ukraine, cited above, § 71). In light of the above, the Court concludes that the main responsibility for the protracted duration of the proceedings rests with the State.
15.  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). It 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.
16.  There has accordingly been a breach of Article 6 § 1.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
17.  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, costs and expenses
18.  The applicant claimed 10,000 euros (EUR) for non-pecuniary damage.
19.  The Government contested this claim.
20.  The Court considers that the applicant must have sustained non-pecuniary damage on the basis of the violation found. Ruling on an equitable basis, it awards him EUR 2,000 under this head.
B.  Default interest
21.  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 application admissible;

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

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the Ukrainian hryvnia 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič	Deputy Registrar	President