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FIFTH
SECTION
CASE OF KALINICHENKO v. UKRAINE
(Application
no. 25444/03)
JUDGMENT
STRASBOURG
26
July 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.
The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 25444/03) 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 Georgiy Mikhaylovich Kalinichenko (“the
applicant”), on 21 June 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
5 April 2006 the Court
decided to communicate the complaints under Articles 6 § 1 and
13 of the Convention 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 1948 and lives in the city of Simferopol.
- On
29 August 1997 the Transport Prosecutor of the Crimea (hereinafter
“the Prosecutor”) instituted criminal proceedings against
the applicant on charge of a violation of labour legislation (Article
135 of the Criminal Code of 1960).
- On
17 October 1997 the Prosecutor issued an indictment. The applicant
was obliged not to leave the place of his permanent residence.
- On
14 November 1997 the Prosecutor brought against the applicant an
additional charge for abuse of power (Article 165 of the Criminal
Code of 1960).
- On
8 December 1997 the case was assigned to the Tsentralny District
Court of Simferopol (hereinafter “the District Court”).
- On
18 September 1998 the District Court, following the request of the
applicant's representative, remitted the case for additional
investigation.
- On
2 November 1998 the Prosecutor issued a new indictment under Articles
135 and 165 of the Criminal Code.
- On
30 November 1998 the proceedings were resumed before the District
Court.
- On
30 August 1999 the District Court, upon its own initiative, remitted
the case for additional investigation.
- On
1 October 1999 the Higher Court of the Crimea, following the
protest of the Deputy Public Prosecutor of the Crimea, quashed
this ruling and remitted the case to the first instance court.
- On
11 November 1999 the proceedings were resumed before the District
Court.
- On
6 January 2000 the District Court, following the request of the
applicant's representative, ordered a forensic medical examination of
Mrs K., a victim in the case.
- On
10 July 2000 the Crimea Medical Forensic Centre returned the
case-file without conducting the examination prescribed as Mrs K.
refused to appear before the medical commission.
- On
15 September 2000 the District Court, following the request of the
applicant's representative, ordered an additional forensic medical
examination in the case.
- On
24 November 2000 the case-file, together with an expert statement,
was returned to the District Court.
- On
16 March 2001 the District Court acquitted the applicant.
- On
29 May 2001 the Higher Court of the Crimea returned the case-file to
the District Court as the cassation appeal of Mrs K. had not been
served upon the other parties to the proceedings and the cassation
appeal of the Prosecutor did not comply with the procedural
formalities.
- On
14 August 2001 the proceedings were resumed before the Court of
Appeal of the Crimea (former the Higher Court of the Crimea,
hereinafter “the Court of Appeal”).
- On
22 January 2002 the Court of Appeal quashed the decision of 16 March
2001 and sentenced the applicant to two years of correctional work
for abuse of power (Article 271 of the Criminal Code of 2001).
- On
4 April 2002 the Supreme Court, upon the applicant's cassation
appeal, quashed the decision of 22 January 2002 and remitted the case
for a fresh consideration by the court of appeal.
- On
11 June 2002 the Court of Appeal, upon its own initiative, ordered a
forensic technical examination in the case.
- On
5 August 2002 the proceedings were resumed before the Court of
Appeal.
- On
17 September 2002 the Court of Appeal quashed the decision of 16
March 2001 of the District Court and remitted the case for a fresh
consideration by the first instance court.
- On
25 November 2003 the District Court sentenced the applicant to one
year of correctional labour for abuse of power, suspended under the
statute of limitation. The applicant did not appeal against this
decision, which became final on 10 December 2003.
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, 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...”
- The
Court notes that part of the proceedings complained of relates to the
period prior to 11 September 1997, the date on which the Convention
came into force in respect of Ukraine. After that date, the
proceedings lasted until 10 December 2003, when the decision of the
District Court became final. The length of the
proceedings within the Court's competence was, therefore, six years
and three months. However, in assessing the reasonableness of
the time that elapsed after 11 September 1997, account must be taken
of the state of proceedings on that date (see Milošević
v. “the former Yugoslav Republic of Macedonia”,
no. 15056/02, § 21, 20 April 2006; Styranowski v.
Poland, no. 28616/95, § 46, ECHR 1998-VIII;
Foti and Others v. Italy, judgment of 10 December 1982,
Series A no. 56, p. 18, § 53).
A. Admissibility
- The
Government submitted no observations on the admissibility of the
applicant's complaints.
- The Court notes that the applicant's complaint under
Article 6 § 1 of the Convention 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).
1. Complexity of the case
- The
Government maintained that the case was complicated and required
examination of a wide range of evidence, including multiple forensic
examinations. The applicant contended that the complexity of the
proceedings did not justify their length.
- The
Court considers that, having regard to the nature of the crime with
which the applicant was charged, the present case cannot be
considered as complicated. The fact that several forensic
examinations were conducted does not justify in itself the length of
the proceedings.
2. Conduct of the applicant
- According
to the Government, the applicant is responsible for several periods
of delay, as following his requests the case was remitted for
additional investigation and forensic examinations were ordered on
several occasions, thus these periods of delay were attributable to
him.
- The
applicant disagreed. He maintained that he would not request
additional forensic examinations and remittal of the case for a
further investigation if there had not been serious procedural
defects in his case.
- The
Court considers that the applicant's request to remit the case for
additional investigation was not groundless as it had been supported
by the District Court. As to forensic examinations in the case, the
Court notes that the subsequent applicant's requests were allowed as
the domestic courts agreed that the materials submitted by
investigative authorities were incomplete. The Court concludes,
therefore, that there is no evidence before the Court to suggest that
the applicant contributed in a significant way to the length of the
proceedings.
3. Conduct of the national authorities
- The
Government maintained that the authorities had not been responsible
for any period of delay.
- The
applicant disagreed. He stressed that the authorities had been fully
responsible for six years' duration of the case.
- The Court notes that the decisions of the District
Court and the Court of Appeal were quashed by the Supreme Court,
which required a re-consideration of the case by the courts of two
instances. Furthermore, after the criminal proceedings against the
applicant were initiated in August 1997, the first decision of the
District Court was given on 15 March 2001 only. The Court
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, no. 23926/02, § 34, 13 July
2006). However, in the Court's opinion the national courts
did not act with due diligence.
4. Conclusion
- 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 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 42-43
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. 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 15,000 euros (EUR) 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 considers that the applicant must have sustained non-pecuniary
damage on amount of the length of the criminal proceedings against
him in the course of which he was under an 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 did not submit any claim under this head; the Court,
therefore, makes no award.
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 application admissible;
- 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, 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 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 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
