FIFTH SECTION

CASE OF KOTYAY v. UKRAINE

(Application no. 33645/07)

JUDGMENT

STRASBOURG

20 January 2011

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

In the case of Kotyay 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 14 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 33645/07) 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 Valeriy Vasylyovych Kotyay (“the applicant”), on 2 July 2007.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3.  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
4.  The applicant was born in 1973 and lives in Malyn, the Rivne Region.
5.  On 25 December 2003 the prosecutors started criminal investigations concerning infliction of a bodily injury on Z.
6.  On 21 January 2004 the applicant was accused of that crime and had to give an undertaking not to abscond.
7.  On 2 March 2004 the pre-trial investigations were completed.
8.  On 10 March 2004 the case was sent to the Mlyniv Court for trial.
9.  On 18 April 2008 the Mlyniv Court found the applicant guilty of the crime of which he had been accused and sentenced him to one year of liberty restriction. By the same decision it amnestied the applicant.
10.  On 16 December 2008 the Rivne Regional Court of Appeal allowed the applicant’s appeal, which he had to resubmit on one occasion in order to comply with the procedural requirements, quashed the judgment of 18 April 2008 and remitted the case for a fresh reconsideration to the first-instance court.
11.  On 29 December 2009 the Mlyniv Court terminated proceedings as time-barred.
12.  On 23 February 2010 the Rivne Regional Court of Appeal quashed the decision of 29 December 2009 and remitted the case for re-consideration to the first-instance court. It found that the applicant’s right to defence had been breached and that the applicant had not consented to the termination of the criminal proceedings against him.
13.  The case is still pending before the first-instance court.
14.  In the course of the proceedings the hearings were adjourned once because of the applicant’s failure to appear, once on his request because of his illness, eight times because of the failure of the applicant’s representative to appear before the court and on two occasions the hearings were adjourned to give the applicant and/or his representative a possibility to study the case-file. The applicant had lodged four requests for withdrawal of the judges. Between May 2004 and February 2006 four hearings were scheduled, none of which was held. Between 25 December 2006 and 14 November 2007 three hearings were scheduled and two hearings were held at intervals of approximately five months.
THE LAW
I.  THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
15.  The applicant complained that the length of the proceedings was incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads, in so far as relevant, 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
16.  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
17.  The applicant stated that the length of proceedings was excessive.
18.  The Government submitted that the delays in the proceedings had been caused mainly by the conduct of the applicant and his lawyer, in particular because of their failure to appear and lodging of appeals.
19.  The Court notes that the period to be taken into consideration began on 25 December 2003 and has not yet ended. It has thus lasted about six years and ten months so far.
20.  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 reiterates 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).
21.  The Court notes that the criminal case at issue is not complex. It concerns one count of infliction of a bodily injury and does not involve any complicated factual or legal issues. The applicant is the only defendant in the case.
22.  The Court observes that major delays took place during the examination of the case by the first-instance court. In particular, it took the court four years to decide on the case (see paragraphs 8 and 9 above), there were two remittals of the case because of the breach of procedural law by that court and it has not completed the proceedings so far. Although there were some delays caused due to the applicant’s or his lawyer’s failure to appear (see paragraph 14 above), the Court considers that the primary responsibility for the excessive length of the proceedings rests with the domestic authorities.
23.  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; Polishchuk v. Ukraine, no. 21231/04, §§ 31-32, 15 October 2009).
24.  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 COMPLAINTS
25.  The applicant complained under Articles 6 § 1 and 13 of the Convention of unfairness of the criminal proceedings against him. He also complained under Articles 6 § 3 (b) and (c) of the Convention of a violation of his right to defence.
26.  The Court notes that the proceedings are still pending before the domestic courts. It follows these complaints are premature and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
27.  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
28.  The applicant submitted that a finding of a violation would constitute sufficient just satisfaction in his case.
29.  The Government did not submit any comments.
30.  The Court considers that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction in the circumstances.
B.  Costs and expenses
31.  The applicant did not submit any claim under this head. The Court therefore makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

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

3.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
Done in English, and notified in writing on 20 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste
	Deputy Registrar	President