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FIFTH
SECTION
CASE OF LYUBART-SANGUSHKO v. UKRAINE
(Application
no. 25851/06)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Lyubart-Sangushko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Elisabet
Fura,
Ganna Yudkivska, judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 25851/06) 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 Yevgeniy Aleksandrovich Lyubart-Sangushko
(“the applicant”), on 5 June 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev, of the Ministry of Justice.
- On
16 March 2010 the
Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of the proceedings to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Kharkiv.
- On 2 September 1999 the police
instituted criminal proceedings against him on suspicion of unlawful
making and storage of a firearm. Throughout the major part of the
proceedings the applicant was on a written undertaking not to
abscond.
- On 4 October 1999 the case was
transferred to the Zhovtnevyy District Court of Kharkiv (“District
Court”), which on 21 February 2000 delivered a judgment. On 21
March 2000 the Kharkiv Regional Court of Appeal (“Court of
Appeal”) quashed it and remitted the case for additional
investigations.
- Following the completion of
additional investigations, on 4 September 2000 the case was
referred to the District Court, which on 25 November 2005 found
the applicant guilty as charged, sentenced him to three years of
imprisonment and exempted him from the sentence as the charges
against him became time-barred. On 25 February 2006 the Court
of Appeal upheld the above judgment.
- On 22 June 2006 and 22 February 2007 respectively, the
Supreme Court rejected, as unsubstantiated, the applicant’s and
the prosecutor’s appeals in cassation against the above
decisions.
- According to the Government, in the course of the
proceedings the applicant was three times found guilty of contempt of
court and repeatedly challenged the judges and the court’s
jurisdiction, which entailed adjournments of the hearings and an
eight-month delay in the proceedings. Eight hearings were adjourned
due to the applicant’s failure to appear and seven hearings due
to his and the witnesses’ failure to appear. The applicant
disagreed stating that he had not been duly informed of those
hearings. Fifteen hearings were adjourned due to the witnesses’
or expert’s failure to appear, absence of the judges or upon
the prosecutor’s request. On several occasions the courts
applied compulsory summonses on the witnesses failing to appear. Two
expert examinations were ordered and lasted for about three months.
THE LAW
I. SCOPE OF THE CASE
- Following the Court’s
partial admissibility decision of 16 March 2010, the applicant made
further submissions, in which he reiterated the complaints he had
raised when lodging the application.
- In its partial admissibility
decision, the Court adjourned the examination of the applicant’s
complaint about the length of the criminal proceedings against him
and declared the remaining complaints inadmissible. Therefore, the
scope of the case before the Court is now limited to the
length-of-proceedings complaint.
II. 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 stating that the applicant had
contributed to the length of the proceedings.
- The
period to be taken into consideration began on 2 September 1999 and
ended on 22 February 2007. It thus lasted seven years five months and
twenty days 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 (a) 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 its
complexity, 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 also recalls that
an accused in criminal proceedings should be entitled to have his
case conducted with special diligence, having a particular regard to
any restrictions on liberty imposed pending the conclusion of the
proceedings (see, for instance, Doroshenko
v. Ukraine, no. 1328/04, § 41,
26 May 2011).
- Turning
to the circumstances of the case, the Court considers that the
complexity of the case and the conduct of the applicant, who somewhat
contributed to the overall length of the proceedings (see paragraph 9
above), alone cannot explain that length. At the same time, it notes
the lengthy period of examination of the case by the District Court
(see paragraph 7 above) and the numerous adjournments of
the hearings due to witnesses’ failure to appear (see
paragraph 9 above). In the latter respect, the
Court considers that, even though the courts have several times
applied compulsory summonses on the witnesses failing to appear, they
have also had at their disposal other effective mechanisms to ensure
the witnesses’ presence, including administrative penalties
(see Kobtsev v. Ukraine,
no. 7324/02, § 31, 4 April 2006). It was not suggested
by the Government that the courts have ever considered applying them.
Nor have the majority of the summonses seemed to have any effect (see
Kobtsev v. Ukraine,
cited above, § 71). The Court thus concludes that the main
responsibility for the length of the proceedings rested with the
State.
- 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 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, costs and expenses
- The
applicant claimed a global sum of 107,573 euros
(EUR) in respect of non-pecuniary damage and postal expenses. He did
not specify whether any postal expenses related to the proceedings
before the Court.
- The
Government contested the claims for non-pecuniary damage and left the
claim for postal expenses to the Court’s discretion.
- The
Court considers that the applicant must have
sustained non-pecuniary damage on account of the violation found.
Ruling on an equitable basis, it awards him EUR
800 under this head. As to the claim for costs and expenses, the
Court considers that it is unsubstantiated and rejects it.
B. Default interest
- The
Court considers it appropriate that the default interest rate 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, EUR 800 (eight hundred euros) in respect of
non-pecuniary damage, to be converted into 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Mark Villiger
Deputy Registrar President
