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FIFTH
SECTION
CASE OF MAZURENKO v. UKRAINE
(Application
no. 14809/03)
JUDGMENT
STRASBOURG
11
January 2007
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 Mazurenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mr M. Villiger,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 4 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14809/03) 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 Oleg Leonidovich Mazurenko (“the
applicant”), on 18 April 2003.
2. The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
8 April 2005 the Court
decided to communicate the complaint concerning the length of the
proceedings to the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in the town of Кozelshchina,
the Poltava Region, Ukraine.
- On
15 September 1998 criminal proceedings were instituted against the
applicant on suspicion of theft and corruption. The prosecution's
case was that the applicant, a former manager of the Кozelshchina
District Consumers' Cooperative
(“Козельщинська
райспоживспілка”)
was involved in official misconduct, namely stealing from the shops
under his management.
- On
24 September 1998 the Prosecutor's
Office of the Кozelshchina District of the Poltava Region
(hereafter “the District Prosecutor's Office”)
ordered the applicant's detention.
- On
8 December 1998 the applicant was released under the obligation
not to leave his place of residence.
- On
the same day the investigator ordered the applicant's suspension from
his duties pending the criminal proceedings. Following this order the
applicant's employer, the State-owned Joint-Stock Company
“Galeshchinske khlibopryimalne pidpryemstvo” suspended
the applicant from his duties of the Head of the Board of the
company. On 14 April 2003 the Kobylaky District Court dismissed the
applicant's complaint against this prosecution's order.
The court stated that this issue did not fall within its jurisdiction
and had to be examined in the course of the criminal trial. On 14 May
2003 the Poltava Regional Court of Appeal rejected the applicant's
appeal against this decision for lack of jurisdiction.
- On
20 July 1999 the investigation was completed and the applicant was
given access to the case-file.
- On
3 September 1999 the case was referred to the Kozelishchinskiy
District Court.
- On
29 September 1999 the Poltava Regional Prosecutor's Office, following
the applicant's request, withdrew the case from the court and
remitted it for further investigation.
- On
1 October 1999 the investigation was suspended as Mr S., another
accused in this case, flew from justice.
- On
11 February 2000 Mr S. was found and the proceedings were resumed.
- On
24 February 2000 Mr S. escaped and was again placed on the wanted
list. The proceedings were suspended.
- On
2 June 2000 the Deputy Prosecutor of Poltava Region quashed the
decision of 24 February 2000 on the suspension of the proceedings and
remitted the case for further investigation.
- On
8 June 2000 the investigation was suspended as Mr S. was on the
wanted list.
- On
1 August 2000 the proceedings were resumed.
- On
3 August 2000 the criminal case against Mr S. was closed. On the same
day the proceedings against the applicant were suspended due to his
illness. The proceedings were subsequently resumed on 25 September
2000.
- On
2 October 2000 the investigation was completed and the applicant and
his lawyer were given access to the case-file.
- On
4 October 2000 the applicant and his lawyer finished consulting the
case-file.
- On
28 October 2000 the case was referred to the Poltava Regional Court.
- On
2 November 2000 the Poltava Regional Court referred the case to the
Avtozavodsky District Court.
- On
18 December 2000 the trial proceedings commenced.
- The
court postponed the hearing in order to summon witnesses on several
occasions: on 18 and 20 December 2000, on 29 January, 5 and
7 February, 26 March, 23 April and 4 July 2001. The hearing was
adjourned twice following the applicant's requests – on 7
August and 12 December 2001.
- On
12 December 2001 the hearing was adjourned in order to provide the
applicant with an opportunity to prepare his defence with respect to
new charges brought against him, namely, falsification of official
documents.
- On
7 February 2002 the court sentenced the applicant to three years'
imprisonment, suspended on probation, for theft.
- On
16 June 2002 the Poltava Regional Court of Appeal quashed this
decision due to the insufficiency of the pre-trial investigation
which could not be remedied during the trial. The Court of Appeal
specified, inter alia, the lack of documentary evidence,
namely, accounting records, and the failure to question the audit
inspectors who had monitored the Cooperative during the period under
investigation.
- The
case-file was received by the District Prosecutor's Office on 30 July
2002, and on 7 August 2002 an investigator was assigned to deal with
the case. However, the investigation was delayed until September 2002
due to the illness of the investigator.
- During
the additional investigation, a number of witnesses were questioned
and several audit inspections were ordered.
- On
6 December 2002 the applicant unsuccessfully challenged the
investigator.
- On
26 February 2003 the proceedings were suspended due to the
applicant's illness. The proceedings were subsequently resumed on
25 March 2000.
- On
17 April 2003 the investigation was completed and the applicant was
given access to the case-file. On the same day the applicant finished
consulting the case-file.
- On
29 April 2003 the case was referred to the Kozelishinskiy District
Court.
- The
trial proceedings commenced on 8 July 2003. On the same day the
hearing was adjourned till 17 September 2003 due to the Judge's
vacations.
- The
court heard the merits of the case on 17, 18, 22 and 30 September,
9, 10, 16, 21 and 24 October and 3 November 2003.
- On
24 November and 2 December 2003 the hearing was adjourned due to the
failure of a witness to appear.
- On
11 December 2003 the District Court sentenced the applicant to three
years' imprisonment, suspended on probation, for theft and discharged
him both from the criminal liability and from the sentence due to the
expiry of the statutory time-limit. On the same day the court issued
a separate ruling, indicating that the pre-trial investigation had
lasted unreasonably long and had included periods when the
proceedings had been suspended for no convincing reason. The court
stated that the length of the investigation had also hampered the
progress of the trial as the witnesses had had significant problems
recalling their testimonies given to the investigators some five
years before. The court notified the Poltava Regional Prosecutor of
these matters and requested to take the appropriate measures.
- On
27 February 2004 the Poltava Regional Court of Appeal, following the
prosecution's appeal, quashed the applicant's discharge from the
criminal liability, upheld his conviction, three-year probationary
sentence and the exemption from serving the sentence.
- On
27 January 2005 the Supreme Court rejected the applicant's appeal in
cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had been incompatible with the reasonable time
requirement, provided 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...”
A. Admissibility
- The
Government raised objections regarding exhaustion of domestic
remedies similar to those which the Court has already dismissed in
the Merit case (see, Merit v. Ukraine, no. 66561/01, §§
54-67, 30 March 2004). The Court considers that the present
objections must be rejected for the same reasons.
- 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
43. The
Court recalls that in assessing the reasonableness of the length of
the proceedings in question, it is necessary to have regard to the
particular circumstances of the case and the criteria laid down in
the Court's case-law, in particular the complexity of the case and
the conduct of the applicant and of the relevant authorities, and
what was at stake for the applicant (see, for instance, Kudla v.
Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).
1. Period to be taken into consideration
- The
parties agreed that the period to be taken into consideration in the
present case had begun in September 1998 when the criminal
proceedings were instituted against the applicant. The Government
maintained that the proceedings ended on 27 February 2004, when the
Court of Appeal gave its decision in the case. The applicant
disagreed and stressed that the proceedings before the Supreme Court
had to be taken into consideration as well.
- The
Court recalls that the new cassation appeal to the Supreme Court of
Ukraine for decisions which were adopted after 29 June 2001 affords
an individual aggrieved by a court decision a real opportunity to
have that decision annulled, and that the cassation appeal must
therefore be considered to form part of the chain of domestic
remedies (see, Arkhipov v. Ukraine (dec.), no.
25660/02, 18 May 2004). Therefore, the Court agrees with the
applicant that the proceedings before the Supreme Court should be
included to the period in question. Thus, the proceedings in the
applicant's case ended in January 2005; consequently they have lasted
six years and four months.
2. Complexity of the case
- The
Government maintained that the case was complicated and required
examination of a wide range of evidence. The applicant contended that
the complexity of the proceedings did not justify their length.
- The
Court considers that, even though the case was of some complexity,
having regard to the financial nature of the crime with which the
applicant was charged, voluminous documentary evidence and ten
forensic examinations conducted, it cannot be said that this in
itself justified the length of the proceedings.
3. Conduct of the applicant
- According to the Government, the applicant is
responsible for several periods of delay, pending the investigation
and trial, connected to his illness. The Government further mentioned
that the applicant three times requested to adjourn the hearing.
Finally the Government emphasised that on 29 September 1999 the
Poltava Regional Prosecutor's Office had recalled the case from the
court and remitted it for further investigation following the
applicant's request, thus this period of delay was attributable to
him.
- The
applicant disagreed. He maintained that he was ill only once during
the trial, and that the decisions to suspend the investigation due to
his illness had been unlawful. The applicant further argued that even
though he requested three times to adjourn the hearing for one day,
it remained unclear why the court had fixed the hearings at such long
intervals. He finally contended that he would not request remittal of
the case for a further investigation if there had not been so serious
procedural defects in his case.
- As
concerns suspension of the pre-trial investigation with respect to
the applicant's illness, the Court notes that the investigative
authorities had to examine many witnesses and appoint forensic
examinations, and the applicant's illness could hardly be considered
an obstacle for these actions. The Court further notes that, whenever
hearings were adjourned, the subsequent hearings were scheduled with
excessive delays, which must be imputed, at least in part, to the
State authorities (see, Tommaso Palumbo v. Italy, no.
45264/99, § 19, 26 April 2001). Finally the Court considers
that the applicant's request to remit the case for a further
investigation was not groundless as it had been supported by the
Prosecutor's Office (see paragraph 11 above).
- Given
the above considerations, the Court concludes that there is no
evidence before the Court to suggest that the applicant contributed
in a significant way to their length.
4. Conduct of the national authorities
- The
Government maintained that the authorities had not been responsible
for any period of delay, and certain periods of delay had to be
attributed to third persons, namely Mr S. who had been on the wanted
list.
- The
applicant disagreed. He stressed that the authorities had not taken
appropriate measures to locate Mr S. and that they had been fully
responsible for six years' duration of the case.
- The
Court notes that the hearing of the case was adjourned eight times in
order to summon witnesses (paragraph 24 above). In this respect the
Court recalls the domestic courts had at their disposal ample
machinery to ensure the witnesses' presence in the courtroom, however
it does not appear from the case file that the court availed itself
of these possibilities (see, mutatis mutandis, Smirnova v.
Ukraine, no. 36655/02, § 69, 8 November 2005). As
concerns Mr S., the Court points out that he had a possibility to
escape after he had already been on the wanted list and had been
found. In the Court's view, no appropriate measures were taken to
secure his presence. In any event, his behaviour did not exempt the
authorities from ensuring that the reasonable time requirement of
Article 6 was complied with in respect of the applicant, as the duty
to administer justice expeditiously is incumbent in the first place
on the competent authorities (see, mutatis mutandis, Mitchell and
Holloway v. the United Kingdom, no. 44808/98, § 56,
17 December 2002).
- The
Court further notes three remittals of the case for an additional
investigation, which are usually ordered as a result of errors
committed by investigative authorities, the repetition of such orders
within one set of proceedings discloses a serious deficiency in the
prosecution system (see, mutatis mutandis, Baglay v.
Ukraine, no. 22431/02, § 31, 8 November 2005 and
Stoianova and Nedelcu v. Romania, nos. 77517/01 and 77722/01,
§ 20, ECHR 2005 ...). Furthermore, the failure of the
authorities, following years of investigation, to produce to the
court a case ready for trial reveals little diligence on their part.
- The
Court finally recalls that it is the role of the domestic courts to
manage their proceedings so that they are expeditious and effective
(see, Silin v. Ukraine, cited above, §34). However,
in the Court's opinion the national courts did not act with due
diligence, having regard to the applicant's situation.
5. What was at stake for the applicant
- The Court recalls that an accused in criminal
proceedings should be entitled to have his case conducted with
special diligence and Article 6 is, in criminal matters, designed to
avoid that a person charged should remain too long in a state of
uncertainty about his fate (see, Nakhmanovich v. Russia,
no. 55669/00, § 89, 2 March 2006). The Court considers that
much was at stake for the applicant as he suffered a feeling of
indeterminacy in respect of his future, bearing in mind that he
risked imprisonment (see paragraphs 6, 26 and 37-38 above) and
was under an obligation not to leave his place of residence (see
paragraph 7).
6. Conclusion
- Having
regard to the circumstances of the instant case, the overall duration
of the proceedings, their remittals for additional investigation and
reconsideration on several occasions, the Court concludes that no
sufficient grounds of justification have been adduced and that the
length of the applicant's proceedings was excessive.
- There
has accordingly been a violation of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained that the unreasonable length of the
proceedings was in violation of Article 13 of the Convention.
- Having
regard to its findings under Article 6 § 1 (see paragraphs 57 58
above), the Court concludes that this complaint is admissible, but
considers that it is not necessary to rule whether, in this case,
there has been a violation of Article 13 of the Convention (see,
Kukharchuk v. Ukraine, no. 10437/02, §§
39-40, 10 August 2006).
III. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION AND ITS PROTOCOLS
- The
applicant finally complained about his allegedly unlawful suspension
from his duties and lack of access to a court in this respect. He
invoked Article 6 § 1 and Article 1 of Protocol No. 1 to the
Convention.
- The
Court notes at the outset that the applicant worked in a State-owned
company. Even assuming that this complaint falls within the scope of
Article 6 § 1 (see, Pellegrin v. France [GC], no.
28541/95, §§ 70-71, ECHR 1999 VIII), the Court
finds that in the light of all the material in its possession, and
insofar as the matters complained of are within its competence, 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 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 11,955.25 euros (EUR) in respect of pecuniary
damage and loss of income, and EUR 123,000 in respect of
non-pecuniary damage.
- The Government contended that the applicant's claim
was exorbitant and unsubstantiated, and that the finding of a
violation would constitute sufficient just satisfaction in this case.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
non-pecuniary damage as regards the length of the criminal
proceedings against him and imposed obligation not to leave his place
of residence. The Court, making its assessment on an equitable basis,
as required by Article 41 of the Convention, awards the
applicant the sum of EUR 800 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 941.78 for costs and expenses incurred in the
Convention proceedings. He presented a contract with his lawyer for
the above sum.
- The
Government maintained that only those expenses which were actually
and necessarily incurred should be awarded, and left this issue at
the Court's discretion.
- The
Court reiterates that, in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see, among many other
authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 62, ECHR 1999-VIII).
- The
Court considers that these requirements have not been fully met in
the instant case. In particular, it notes that the case was not
particularly complex and the applicant was not required to be legally
represented. Moreover, some of his complaints were declared
inadmissible. Regard being had to the information in its possession
and to the above considerations, the Court awards the applicant
EUR 300 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
- Declares the complaint under Articles 6 § 1
and 13 of the Convention 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 that there is no need to examine
separately the applicant's complaint under Article 13 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 800
(eight hundred euros) in respect of non-pecuniary damage and EUR 300
(three hundred euros) for costs and expenses, plus any tax that may
be chargeable, to be converted into the currency of the respondent
State at the rate applicable on 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 11 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
