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FIFTH
SECTION
CASE OF TELEGINA v. UKRAINE
(Application
no. 2035/03)
JUDGMENT
STRASBOURG
19
November 2009
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 Telegina v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark Villiger,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
judges,
Mykhaylo Buromenskiy,
ad hoc
judge,
and Stephen
Phillips, Deputy Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 2035/03) 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, Mrs Taisiya Alekseyevna Telegina (“the
applicant”), on 11 November 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
3 September 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
- The
applicant was born in 1952 and lives in the town of Zaporizhzhya,
Ukraine.
- The
applicant, being the Head of the Zaporizhzhya Airport Customs Office,
gave an instruction to the customs officers that the deputies of the
local councils should be exempted from customs inspections when
crossing the Ukrainian border.
- In
the period from 9 March 1998 to 22 May 1998 criminal proceedings were
instituted against Mr Ch., Mr S., Mr B., Mr M., Mrs N. and Mrs K. in
connection with smuggling goods to Ukraine. The criminal proceedings
against Mr B., Mr M. and Mrs N. were later discontinued.
- On
22 May 1998 criminal proceedings were instituted against the
applicant. She was charged with exceeding her powers.
- On
11 August 1998 the proceedings against the applicant, Mr Ch. and Mrs
K. were joined.
- On
5 June 1998 the applicant gave a written undertaking not to abscond.
- On
17 June 1998 the applicant was charged with taking a bribe.
- On
18 June 1998 the applicant was arrested. She was remanded in custody.
- On
7 September 1998 the preliminary investigation was terminated and the
case was transferred to the court.
- On 12 May 1999 the Zaporizhzhya Regional Court
convicted the applicant of criminal negligence and sentenced her to
10 months and 24 days’ imprisonment. Since the applicant
had already served her sentence she was released on the same date. By
the same judgment the court required the applicant to give an
undertaking not to abscond.
- On
16 September 1999 the Supreme Court quashed that judgment and
remitted the case for fresh consideration to the Zaporizhzhya
Regional Court on the ground that the latter had failed to examine
all the circumstances of the case.
- On
16 March 2000 the Zaporizhzhya Regional Court convicted the
applicant of criminal negligence and sentenced her to 10 months and
24 days’ imprisonment. Since the applicant had already
served her sentence she was exempted from serving it. By the same
judgment the court placed the applicant under an obligation not to
abscond.
- On
1 June 2000 the Supreme Court quashed the judgment of 16 March 2000
and remitted the case for fresh consideration to the Leninsky
District Court of Zaporizhzhya on the ground that the Zaporizhzhya
Regional Court had failed to examine all the circumstances of the
case.
- On
3 August 2000 the Leninsky District Court of Zaporizhzhya remitted
the case to the prosecution service for additional investigation.
- On
25 December 2000 the additional investigation was terminated and the
case was transferred to the court.
- On
15 October 2001 the Leninsky District Court of Zaporizhzhya convicted
the applicant of criminal negligence and sentenced her to one year’s
imprisonment. The applicant was exempted from serving her sentence
since the charges against her had become subject to a time
limitation. By the same judgment the court removed the undertaking
not to abscond.
- On
10 December 2001 the Zaporizhzhya Regional Court of Appeal upheld
this judgment.
- On
8 October 2002 the Supreme Court quashed the ruling of 10 December
2001 and remitted the case for fresh consideration to the Court of
Appeal on the ground that the latter had failed to examine in due
manner the appeals lodged by the applicant, Mr Ch. and Mrs K.
- On
18 December 2002 the Zaporizhzhya Regional Court of Appeal quashed
the judgment of 15 October 2001 and remitted the case for additional
investigation to the prosecutor’s office.
- On
24 September 2003 the Leninsky District Court of Zaporizhzhya
terminated the criminal proceedings against the applicant since the
charges against her had become subject to a time limitation.
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
period to be taken into consideration began on 22 May 1998 and ended
on 24 September 2003. It thus lasted five years and four months for
preliminary investigation and trial at three 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 contested the
applicant’s complaint, stating that there were
had been no significant periods of
inactivity attributable to the State. They maintained that the case
had been complex and that the judicial authorities had acted with due
diligence. According to the Government, the applicant and other
accused was had
been responsible for several delays. In
particular they stated that the applicant had contributed to the
length of the proceedings by lodging motions and appeals,.
They further submitted that other accused in the case had also
contributed to the length of the 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 an accused in criminal proceedings should be entitled to have
his or her case conducted with special diligence and Article 6 is, in
criminal matters, designed to ensure that a person who has been
charged does not remain for too long in a state of uncertainty about
his or her fate (see Nakhmanovich v. Russia, no. 55669/00,
§ 89, 2 March 2006).
- The
Court finds that much was at stake for the applicant as she suffered
a feeling of uncertainty in respect of her future, bearing in mind
that she spent more than ten months in prison and later had to give
an undertaking not to abscond.
- The
Court notes that the proceedings in issue concerned several similar
straightforward episodes and required the questioning of several
witnesses and the examination of a certain amount of material
evidence. There were three persons accused in the case transferred to
the court. Therefore, the proceedings do not appear to have been
particularly complex.
- Regarding
the applicant’s motions and appeals, the Court reiterates that
the applicant cannot be blamed for using the avenues available to her
under domestic law in order to protect her interests (see Siliny
v. Ukraine, no. 23926/02, § 29, 13 July 2006).
- The Court notes that the complexity of the case and
the applicant’s conduct alone cannot explain the overall length
of the proceedings at issue in the present case. It finds that a
major delay was caused by the repetitive remittals of the case for
fresh consideration and additional investigation. 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).
- 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 ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 5 of the Convention that her
detention pending trial had been unjustified. She further alleged
without invoking any Article of the Convention or Protocols thereto
that she had been unlawfully dismissed from the Zaporizhzhya Customs
Office in March 2002. Lastly, without referring to any Article
of the Convention or Protocols thereto, the applicant alleged that
she had been subjected to physical and moral pressure while in
custody.
- The
Court has examined the remainder of the applicant’s complaints
and considers that, in the light of all the material in its
possession and in so far as the matters complained of were
are within its competence, they did
do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. Accordingly, the Court rejects them as manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 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
- The
applicant claimed payment of salary arrears for the period from 1
July 1998 to 27 October 2003 and reimbursement of her expenses for
dental treatment in respect of pecuniary damage. She further claimed
EUR 100,000 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.
The Court further considers that the finding of
a violation constitutes sufficient just satisfaction for any
non-pecuniary damage which the applicant may have suffered.
B. Costs and expenses
- The
applicant lodged no claim in respect of costs and expenses. The
Court, therefore, makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
about 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;
3. Holds that the finding of a
violation constitutes sufficient just satisfaction for any
non-pecuniary damage which the applicant may have suffered;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
