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FIFTH
SECTION
CASE OF AYBABIN v. UKRAINE
(Application
no. 23194/02)
JUDGMENT
STRASBOURG
18
December 2008
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 Aybabin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Volodymyr
Butkevych,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 23194/02) 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 Dmitriy Aleksandrovich Aybabin (“the
applicant”), on 3 May 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
18 September 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. It also decided to examine the merits of the
remainder of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and is currently detained in the prison of
Zhovti Vody, Ukraine.
- On
8 June 1997 the applicant killed Mr R. and Mr Sh. and inflicted
grievous bodily harm on Mr S. and Mr Sch. after a quarrel in a pub
with a number of youths. The applicant received minor injuries. The
applicant alleged that he had confronted the above persons with a
knife after the quarrel in a pub since he and his friend, Mrs M., had
been attacked.
- On
8 June 1997 the applicant was arrested on suspicion of aggravated
murder. He was suspected of having killed Mr R. and Mr Sh. and
inflicted grievous bodily harm on Mr S. and Mr Sch.
- On
11 June 1997 the applicant was formally charged with two counts of
aggravated intentional murder. On the same day the prosecutor
authorised his detention on remand.
- On
1 August 1997 the prosecutor extended the applicant's detention on
remand and the term of pre-trial investigation up to three months.
- On
1 September 1997 the charges against the applicant were amended: he
was accused of exceeding the limits of necessary defence which
resulted in killing two persons and in inflicting grievous bodily
harm on two others.
- On
3 October 1997 the investigation was completed and the case was
referred to the Kyivskiy District Court of Kharkiv.
- On
3 November 1997 the case was referred from the Kyivskiy District
Court of Kharkiv to the Kominternovskiy District Court of Kharkiv for
examination on the merits.
- On
11 June 1999 a judge of the Kominternovskiy District Court of Kharkiv
remitted the case to the Kyivskiy District Prosecutor's Office of
Kharkiv for additional investigation. The court ordered the
investigative authorities to find all witnesses in the case and
question them, hold a confrontation between them, find the persons
who participated in the quarrel and inflicted minor bodily injuries
on the applicant and Mrs M. The court also requested a reconstruction
of the events and additional forensic examination if the latter
appeared to be necessary. The court also requested to check whether
the charges against the applicant should be re-qualified under
Article 93 of the Criminal Code.
- On
30 August 1999 the investigation in the case was reopened.
- On
28 September 1999 the applicant was charged with exceeding the limits
of necessary defence which resulted in killing two persons and in
inflicting grievous bodily harm on two others.
- On
1 November 1999 the case was referred to the Kominternovskiy District
Court of Kharkiv.
- On
26 November 1999 a judge of the Kominternovskiy District Court of
Kharkiv remitted the case to the Kyivskiy District Prosecutor's
Office of Kharkiv for additional investigation. The court ordered
that a reconstruction of events be held and then a forensic
examination be conducted if it appeared to be necessary.
- On
7 April 2000 the investigation in the case was reopened.
- On
6 May 2000 the applicant was again charged with exceeding the limits
of necessary defence which resulted in killing two persons and in
inflicting grievous bodily harm on two others.
- On
6 May 2000 the case was referred to the Kominternovskiy District
Court of Kharkiv.
- On
18 May 2000 a judge of the Kominternovskiy District Court of Kharkiv
remitted the case for additional investigation on the ground that the
investigative authorities had failed to comply with the requirements
contained in the ruling of 26 November 1999.
- On
30 May 2000 the investigation in the case was officially renewed.
- On
the same day the Kharkiv City Prosecutor set a term for additional
investigation until 30 June 2000 and extended the applicant's
detention on remand until the same date.
- On
7 June 2000 the investigator of the Kharkiv City Prosecutor's Office
instituted criminal proceedings against the applicant charging him
with two counts of murder and two counts of attempted murder.
- On
20 June 2000 the same investigator re-qualified the charges against
the applicant and instituted criminal proceedings against him on two
counts of murder connected to the victims' performance of their
public duty to prevent a crime; and two counts of an attempted murder
connected to the victims' performance of their public duty to prevent
a crime.
- On
20 June 2000 the same investigator instituted criminal proceedings
against the applicant for extremely malicious hooliganism.
- On
the same day the above criminal proceedings against the applicant
were joined.
- On
29 June 2000 the applicant was officially charged with the above
offences.
- On
the same day the pre-trial investigation was completed.
- On
3 August 2000 the applicant consulted the case-file.
- On
4 August 2000 the bill of indictment was completed and the case was
referred to the Kharkiv Regional Court.
- On
17 May 2001 the Kharkiv Regional Court found that the applicant had
intentionally killed Mr R. and Mr Sh. and attempted to kill Mr S.
and Mr Sch. following a quarrel in the pub. Therefore, the court
convicted the applicant of two counts of murder and two counts of
attempted murder and sentenced him to fifteen years' imprisonment.
- On
18 December 2001 the Supreme Court upheld the judgment.
THE LAW
I. 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.
- The
applicant was arrested on 8 June 1997. The period to be taken into
consideration began only on 11 September 1997, when the
recognition by Ukraine of the right of individual petition took
effect. However, in assessing the reasonability of the time that
elapsed after that date, account must be taken of the state of
proceedings at the time.
- The
period in question ended on 18 December 2001. It thus lasted four
years and three months for the investigation and two levels of
jurisdiction.
A. Admissibility
- 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
- The Government submitted that the applicant's criminal
case had been complex. In particular, they stated that the domestic
court had to consider thoroughly the applicant's allegations that he
had been acting in self-defence. According to
the Government, the applicant had been responsible for several
delays, in particular, by making demands for expert evidence and by
lodging petitions. The Government finally submitted that the
witnesses and the victims had also contributed to the length of
proceedings.
- The
applicant disagreed.
- 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). What is at stake
for the applicant has also to be taken into consideration. In this
respect the Court recalls that throughout the period under
consideration the applicant was kept in custody – a fact which
required particular diligence on the part of the authorities and
courts dealing with the case to administer justice expeditiously (see
Abdoella v. the Netherlands, 25 November 1992, § 24,
Series A no. 248 A).
- As
regards the complexity of the case, the Court notes that the
proceedings at issue concerned one episode which included two counts
of murder and two counts of attempted murder, and required the
questioning of fifteen witnesses, conducting several simple forensic
examinations and a reconstruction of events. The applicant was the
only accused in this case. Therefore it could not be said that the
proceedings were so complex as to justify their length.
- As regards the conduct of the parties, the Court finds
that a major delay was caused by the remittal of the case from the
Kyivskiy District Court of Kharkiv to the Kominternovskiy District
Court of Kharkiv for examination
on the merits, and by the repetitive remittals of the case for
additional investigation (see paragraphs 11,
12, 16, 20 above). It reiterates that a repetitive
re-examination of the case within one set of proceedings can disclose
a serious deficiency in the domestic judicial system (see
Wierciszewska v. Poland, no. 41431/98, § 46,
25 November 2003). Although the Court has previously
rejected some cases concerning repeated remittals, having observed
that the judicial authorities had acted diligently in handling a
complex matter (see, for example, Zhurba v. Ukraine
(dec.), no. 11215/03, 19 June 2007, and
Bespalov v. Ukraine (dec.), no. 11484/05,
15 January 2008), it cannot find a similar justification for
remittals in the present case.
- Having
regard to the information in its possession and 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 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 UAH 11,365 Ukrainian hryvnas (UAH, approximately
EUR 1,557) and sought a new apartment in respect of pecuniary damage.
He also claimed 700,000 euros (EUR) in respect of non-pecuniary
damage.
-
The Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him 800 EUR under that head.
B. Costs and expenses
- The
applicant also claimed UAH 274.10 (approximately 40 EUR) for the
costs and expenses.
-
The Government agreed to pay the applicant UAH 209.86.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the applicant EUR 40 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 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
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 40 (forty
euros) in respect of costs and expenses, to be converted into the
national currency of Ukraine at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(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 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
