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FIFTH
SECTION
CASE OF MALKOV v. ESTONIA
(Application
no. 31407/07)
JUDGMENT
STRASBOURG
4
February 2010
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 Malkov v. Estonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy Section
Registrar,
Having
deliberated in private on 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31407/07) against the
Republic of Estonia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a stateless person, Mr Deniss
Malkov (“the applicant”), on 11 July 2007.
- The
applicant was represented by Ms A. Jakobson, a lawyer practising in
Tallinn. The Estonian Government (“the
Government”) were represented by their Agent, Ms M. Kuurberg,
of the Ministry of Foreign Affairs.
- On
8 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979. He is currently serving a prison
sentence.
A. Pre-trial proceedings
- On
6 August 1998 a criminal investigation was started in respect of the
murder of a taxi driver whose body had been found a week earlier in a
forest. His car had been set on fire.
- On
28 January 1999 the criminal investigation was suspended as the
identity of the perpetrator could not be established.
- On
10 August 1999 the investigation was resumed, K. being a suspect. On
the following day the applicant was interviewed as a witness. He said
that he had not used a taxi to get from Tallinn to Sillamäe
in May 1998, had not sold a mobile phone to F. and had heard
nothing about the murder of a taxi driver from Tallinn. The interview
lasted for ten minutes.
- On
16 August 1999 the investigation was again suspended.
- On
19 April 2001 a resumption of the investigation was ordered.
- Also
on 19 April 2001 the chairperson of the Tallinn Administrative Court
(halduskohus) authorised the installation of covert listening
devices in T.’s home and covert audio recording of
conversations. The authorisation was for a ten-day period and
remained valid until 18 May 2001. According to a report concerning
the surveillance activity, on 11 May 2001 the applicant and T. talked
about the murder of the taxi driver.
- On
30 July 2001 a police investigator drew up a decision by which the
offence, initially qualified as manslaughter, was requalified as
murder. K. and the applicant were identified as suspects. The
investigator ordered that they should be taken to the police station
the following day.
- On
1 August 2001 the investigator requested that the applicant and K. be
detained in case they attempted to leave the country.
- On
17 August 2001 the police attempted to arrest the applicant, who was
not at home. His neighbour had not seen him for a week.
- On
the same date the investigator drew up charges against the applicant.
He was charged, together with K., with murder, aggravated robbery and
destruction of property. According to the charges the offences had
been committed on the night of 17 May 1998. As the applicant was
evading the criminal investigation, he was declared a fugitive and
the investigation was suspended.
- Also
on 17 August 2001 the Ida-Viru County Court (maakohus)
authorised, at the investigator’s request, the applicant’s
detention for ten days after his arrest.
- On
5 October 2001 a criminal investigation was started in respect of T.,
who was charged with failure to report the murder of the taxi driver.
- On
1 December 2003 the applicant was arrested.
- On
2 December 2003 he was presented with the charges drawn up on
17 August 2001.
- On
4 December 2003 the Narva City Court (linnakohus) authorised
his detention for one month. Subsequently, the court regularly
extended his detention (on 31 December 2003 and on 29 January, 26
March, 27 May, 23 July and 26 August 2004).
- In
the meantime, on 23 July 2004, the criminal case concerning the
failure by T. to report a crime was joined to the case in which the
applicant and K. were defendants.
B. Court proceedings
- On
21 September 2004 the bill of indictment was drawn up and the
criminal case file was sent to the Narva City Court.
- By
a decision of 1 February 2005 the City Court committed the applicant
for trial together with K. and T. The applicant and K. were charged
with murder and destruction of property; T. was charged with failure
to report a crime. The City Court endorsed the preventive measures
previously applied in respect of the defendants: it extended the
applicant’s detention and K.’s prohibition on leaving his
place of residence. No preventive measure was applied in respect of
T. as he was serving a ten-year prison sentence at the time.
-
Hearings at the Narva City Court and the Viru County Court, which was
dealing with the case after a reorganisation of the court system,
were scheduled for five days both in 2005 and 2006. Of these ten
hearing days, scheduled hearings were adjourned on five occasions,
mainly because of the illness of a judge or a lay judge and because
of the failure of witnesses to appear in court. In the spring of 2006
the judge hearing the case died. The court proceedings were
recommenced with another judge. On 18 October 2006 the presiding
judge withdrew from hearing the case as he had ordered the
applicant’s detention at an earlier stage of the proceedings.
On the same date another judge withdrew for the same reason. The case
was then assigned to the fourth judge, who conducted the proceedings
until the end.
- In
2007 and 2008 court hearings were scheduled for eleven days. In fact,
hearings took place on five days and were adjourned on six occasions
for reasons such as the illness of the judge, the prosecutor and a
lawyer and, on three occasions, the failure of witnesses to appear.
- On 29 April 2005, 31 May 2006, 16 August 2007, 27
November 2007 and 6 February 2008 the City Court and County Court
rejected the applicant’s request to release him and to apply a
signed undertaking not to leave his place of residence as the
preventive measure instead of detention. The courts noted that the
applicant was charged with a serious offence; he had been in hiding
for a long time (from 17 August 2001 to 1 December 2003), during
which time he had been well aware that the police were looking for
him. However, he had gone to Russia and had returned, crossing the
border illegally, only six months later, because his Russian visa had
expired. The courts also found that the applicant had no close ties
in Estonia as he was a stateless person, was not married and had no
family. It was considered that in view of the severe punishment the
applicant was facing according to the charges, there were grounds to
believe that he could again abscond. The courts also considered that
it was not excluded that if at liberty the applicant could exert
pressure on the victim and witnesses.
- On
4 September 2008 the Viru County Court delivered its judgment. The
applicant, together with K., was convicted of murder and destruction
of property. He was sentenced to thirteen years’ and three
years’ imprisonment respectively; the composite sentence for
the two offences was set at thirteen years. The time spent in
detention was counted towards the sentence already served. The
preventive measure applied in respect of the applicant was not
amended – he was to remain in custody until the judgment became
final.
- On
the same date the County Court decided to terminate the criminal
proceedings against T. due to inappropriateness of the penalty, as he
had been convicted in another criminal case and a composite sentence
of ten years’ imprisonment had been imposed on him.
- The
applicant appealed against the County Court’s judgment,
referring, inter alia, to a violation of the reasonable time
requirement enshrined in Article 6 § 1
of the Convention. He also pointed out that he had been in detention
for almost four years and ten months.
- By a judgment of 27 January 2009 the Tartu Court of
Appeal (ringkonnakohus) quashed the County Court’s
judgment in so far as the punishment was concerned. The Court of
Appeal referred to Article 6 § 1 of
the Convention and noted that what was reasonable for the length of
criminal proceedings depended on the specific circumstances of the
case. It considered that failure to conduct criminal proceedings
within a reasonable time did not necessarily require the person’s
acquittal; depending on the circumstances it could also be
proportionate to terminate criminal proceedings for reasons of
inappropriateness or to take unreasonable length of proceedings into
account in the imposition of a punishment. The Court of Appeal found
that the criminal proceedings in the present case had lasted for ten
years and six months. It considered it “not unimportant”
that the applicant had been kept in detention for almost five years
and two months. It held that the proceedings had not been conducted
within a reasonable time. Considering the above, the Court of Appeal
found it appropriate to reduce the applicant’s sentence. He was
sentenced to eight years’ imprisonment for murder and one
year’s imprisonment for destruction of property and the
composite sentence was set at eight years.
- On
22 April 2009 the Supreme Court (Riigikohus) declined to hear
the applicant’s appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
385 of the Code of Criminal Procedure (Kriminaalmenetluse
seadustik) provides that a ruling whereby a court reviews the
well-foundedness of pre-trial detention is not subject to a separate
procedural appeal. According to Article 383 §
2 of the Code, such a ruling can be challenged in an appeal against
the judgment in the main proceedings.
- In
a decision of 30 December 2008 (case no. 3-4-1-12-08), the
Constitutional Review Chamber of the Supreme Court dealt with a
complaint concerning length of criminal proceedings. It rejected the
complaint, considering that the complainant could have had recourse
to another effective remedy. The Supreme Court held:
“21. The
Chamber is of the opinion that [the complainant’s] right to
proceedings within a reasonable time has been violated and that [the
complainant] is entitled to submit a relevant complaint as part of
the proceedings pending before the Tartu County Court. The court is
under the obligation to adjudicate such a complaint at any stage of
proceedings, not only when rendering a judgment. If necessary, the
court must proceed from the Convention and the practice of
application thereof, which – pursuant to Article 2 §
2 of the Code of Criminal Procedure – constitute a source of
criminal procedural law. The Convention is an international agreement
ratified by the Riigikogu, which – proceeding from Article 123
§ 2 of the Constitution – has
priority over Estonian laws or other legislation (see the Supreme
Court en banc judgment of 6 January 2004 in case no.
3-1-3-13-03 – RT III 2004, 4, 36, § 31).
22. According to the case-law of the European
Court of Human Rights the reasonableness of the length of proceedings
is to be assessed by a court in the light of the particular
circumstances of the case, regard being had to the criteria laid down
in the Court’s case-law, in particular the complexity of the
case, the applicant’s conduct and the conduct of the competent
authorities (see, for example, Pélissier and Sassi
v. France [GC], no. 25444/94, § 67, ECHR 1999 II).
The Supreme Court, too, has pointed out that upon assessing whether a
reasonable time has been exceeded a court must take into account the
gravity of the criminal offence, the complexity and volume of the
criminal case, and other concrete circumstances, including the course
of proceedings (see the Criminal Chamber of the Supreme Court
judgment of 27 February 2004 in case no. 3-1-1-3-04 – RT
III 2004, 8, 86, § 19).
23. If the court comes to the conclusion that
[the complainant’s] right to proceedings within a reasonable
time has been violated, the court can, in the light of all the
circumstances and on the basis of Article 6 §
1 of the Convention, terminate criminal proceedings due to
inappropriateness, render a judgment of acquittal or take the fact
that reasonable time was exceeded into account upon imposition of
punishment.
As regards the referred possibilities the Criminal
Chamber of the Supreme Court has pointed out that the expiry of
reasonable length of criminal proceedings need not necessarily and
always bring about the acquittal of a person. Depending on the
circumstances a proportional result of the expiry of reasonable time
of criminal proceedings may be, for example, the termination of
criminal proceedings for reasons of inappropriateness or taking the
referred fact into account upon imposition of punishment (see the
Criminal Chamber of the Supreme Court judgment of 27 February
2004 in case no. 3-1-1-3-04 – RT III 2004, 8, 86, § 22).
With regard to taking into account the unreasonable length of
proceedings upon imposition of punishments the Criminal Chamber has
pointed out that on the basis of Article 6 § 1 of the Convention
and pursuant to Article 61 of the Penal Code the courts have the
right to impose a less onerous punishment than the minimum term or
rate provided by law (see the Criminal Chamber of the Supreme Court
judgment of 7 November 2008 in case no. 3 1 1 28 08
– not yet published in RT III, § 17).
...
25. In the examination of [the complainant’s]
request for compensation for the damage caused by the violation of
fundamental rights, the Chamber agrees with the opinion expressed in
the written opinions of the participants in the proceeding that [the
complainant] can demand compensation for damage in an administrative
court on the bases and pursuant to the procedure established in the
State Liability Act.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention had
been excessive, and there had been a breach of Article 5 § 3 of
the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
1. The parties’ submissions
- The
Government argued that the applicant had not exhausted domestic
remedies as he had not appealed against the Narva City Court’s
decision of 4 December 2003 whereby his detention had been
authorised, or against the subsequent decisions by which the court
had extended his detention. The Government also pointed out that the
last ruling whereby the applicant’s detention had been extended
(26 August 2004) had been made more than six months before the
applicant lodged his application with the Court (11 July 2007). They
were of the opinion that Article 5 § 3
did not apply to the period of detention during the court
proceedings; moreover, the applicant had not raised the issue of the
length of his detention in his appeal against the County Court’s
judgment of 4 September 2008 and in any event the court proceedings
were still pending at the time when the Government submitted their
observations.
- Alternatively,
the Government maintained that the applicant had lost victim status
within the meaning of Article 34 of the Convention after the Tartu
Court of Appeal’s judgment of 27 January 2009 by which the
applicant’s sentence had been reduced owing to the length of
his detention and of the court proceedings.
- The
applicant objected arguing that his complaint did not concern the
initial detention order or detention during pre-trial investigation
but his protracted detention during the lengthy court proceedings. As
concerned his appeal against the County Court’s judgment, the
applicant had raised the issue of the length of the pre-trial
detention and of the criminal proceedings.
2. The Court’s assessment
- The
Court reiterates that the purpose of Article 35 is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are
submitted to the Convention institutions (see, among many other
authorities, Selmouni v. France [GC], no. 25803/94, §
74, ECHR 1999 V). It observes that the applicant was arrested on
1 December 2003 and subsequent to the City Court’s
authorisation to take him into custody his detention was regularly
extended until the criminal case was transferred to the City Court
for judicial proceedings in September 2004. By that time the
applicant had been in pre-trial detention for less than ten months.
During the judicial proceedings in the Narva City Court and Viru
County Court the applicant repeatedly requested to be released but
these requests were rejected (see paragraph 25 above). No procedural
appeal could be lodged against these rulings. The Court considers
that the domestic authorities have had an opportunity to put right
the alleged violation of the applicant’s rights under Article 5
§ 3 of the Convention. In the context
of the present case it is not of decisive importance whether or not
the applicant appealed against the initial decision whereby his
detention was authorised or against the decisions to extend his
detention during the pre-trial investigation, as at that time the
issue of the compatibility of the length of his detention with
Article 5 § 3 had not
necessarily arisen. As to the question whether the applicant should
have raised this issue in his appeal to the Court of Appeal in the
main proceedings, the Court notes that at the time when the applicant
lodged his application with the Court his case was still pending
before the first-instance court and therefore such an appeal was not
a remedy available to the applicant at the material time. Therefore,
this objection is dismissed.
- As
regards the argument that the application had been lodged too late,
the Court notes that the applicant was in pre-trial detention on 11
July 2007 when he lodged his application with the Court. Therefore,
the six-month rule has been complied with and this objection is also
dismissed.
- In relation to the question whether the applicant has
lost his victim status, as argued by the Government, the Court
reiterates that the reduction of a sentence on the ground of the
excessive length of the proceedings does not in principle deprive the
individual concerned of victim status within the meaning of Article
34 of the Convention. However, this general rule is subject to an
exception when the national authorities have acknowledged, either
expressly or in substance, and then afforded redress for, a breach of
the Convention (see, inter alia, Eckle v. Germany,
15 July 1982, § 66, Series A no. 51; Jansen v. Germany
(dec.), no. 44186/98, 12 October 2000; and Beck v. Norway,
no. 26390/95, § 27, 26 June 2001). In cases concerning the
failure to observe the reasonable time requirement guaranteed by
Article 6 § 1 of the Convention, the national authorities
can afford adequate redress, in particular by reducing the
applicant’s sentence in an express and measurable manner (see,
among others, Cocchiarella v. Italy [GC], no. 64886/01,
§ 77, ECHR 2006 V; Sorvisto v.
Finland, no. 19348/04, §
66, 13 January 2009; Beck, cited above; and Kaletsch v.
Germany, (dec.), no. 31890/06, 23 June 2009).
- As
regards the present case, the Court observes that the Court of Appeal
in its judgment of 27 January 2009 addressed the issue of the length
of the criminal proceedings in a detailed manner, also making
reference to the case-law of the Supreme Court and of the European
Court of Human Rights. Although the Court of Appeal mentioned the
applicant’s detention as having lasted almost five years and
two months, it continued to conclude that the length of the criminal
proceedings had not been reasonable. It appears that the length of
the applicant’s detention was referred to in order to
strengthen the court’s argument that the length of the criminal
proceedings had been unreasonable. The Court considers that the Court
of Appeal did not thereby expressly acknowledge that Article 5 §
3 had been violated and it did not reduce the applicant’s
sentence on this account in a measurable manner.
- Consequently,
the Court finds that the applicant has not ceased to be a victim
within the meaning of Article 34 of the Convention.
B. Merits
1. Period to be taken into consideration
- The
period to be considered under Article 5 § 3 started on
1 December 2003, when the applicant was arrested. The Court,
having regard to its case-law (see, for example, Kudła v.
Poland [GC], no. 30210/96, §§ 104-105, ECHR
2000-XI), finds that for the purposes of Article 5 §
3 the period in question came to an end on 4 September 2008, when the
Viru County Court delivered its judgment convicting the applicant.
The applicant was accordingly held in pre-trial detention for
slightly more than four years and nine months.
2. Reasonableness of the length of detention
(a) The parties’ arguments
- The
applicant considered that the criminal case had not been complicated
and noted that the pre-trial investigation in its major part had been
completed before the applicant had been taken into custody.
- The
Government maintained that the applicant’s detention was
justified in view of the fact that he had been a fugitive for more
than two years. Therefore, there had been reason to believe that if
at liberty he might abscond. Furthermore, the applicant had been
charged with a very serious offence carrying life imprisonment as a
maximum sentence. They also pointed out that the applicant was a
stateless person, he was not married and had no family, job or
permanent income; these factors had not tied him to Estonia, the
country which he had left for Russia when he had been in hiding.
Moreover, the criminal case had been a complicated one.
(b) The Court’s assessment
- The
Court reiterates that the general principles regarding the right “to
trial within a reasonable time or to release pending trial”, as
guaranteed by Article 5 § 3 of the Convention, have been stated
in a number of its previous judgments (see, among other authorities,
Kudła, cited above, § 110 et seq.; McKay v.
the United Kingdom [GC], no. 543/03, § 41 et seq.,
ECHR 2006 X; and Sulaoja v. Estonia, no. 55939/00,
§§ 61-64, 15 February 2005, with further references).
- The
Court observes that in the present case the authorities mainly relied
on a reasonable suspicion that the applicant had committed a serious
offence and a risk that he might abscond as he had evaded the
proceedings for a long period of time prior to his arrest. The courts
also referred to the possibility that when at liberty the applicant
might exert pressure on the victim and witnesses.
- The
Court accepts that the suspicion against the applicant of having
committed the offence and the need to secure the proper conduct of
the proceedings initially justified his detention. His detention was
further justified by his leaving the country and his long-lasting
evasion of the proceedings. Thus, in the Court’s view the
grounds for the applicant’s detention, at least initially, were
“relevant” and “sufficient”.
- However,
according to the Court’s case-law, the Court must also be
satisfied that the national authorities displayed “special
diligence” in the conduct of the proceedings. The complexity
and special characteristics of the investigation are factors to be
considered in this respect (see, for example, Scott v. Spain,
18 December 1996, § 74, Reports of Judgments and Decisions
1996 VI, and I.A. v. France, 23 September 1998, §
102, Reports 1998 VII).
- In
the present case, the Court cannot agree with the Government’s
argument that the criminal case was complicated. It observes that the
case concerned murder and destruction of property by two defendants,
the applicant and K. In addition, T. was charged with failure to
report a crime. According to the County Court’s judgment of
4 September 2008 the court heard eight witnesses and a victim
and further relied on statements of three witnesses and a victim
given during the preliminary investigation. The other, mainly
documentary, evidence examined by the court, as reflected in the
County Court’s judgment, was in the Court’s opinion not
particularly voluminous.
- The
Court considers that the length of the court proceedings and the
applicant’s detention in the present case were mainly caused by
numerous adjournments of the court hearings owing to the difficulties
of the authorities in obtaining the presence of witnesses and to the
illness of the participants to the proceedings. Furthermore, the
court proceedings had to be resumed from the beginning because of the
presiding judge’s death during the proceedings and subsequent
withdrawal of two judges. What is more, there were considerable
delays between the scheduled hearings. On the basis of the
information available to the Court, it appears that from 2005 to 2008
there were five scheduled hearing days per year on an average, about
half of which were adjourned. Thus, leaving aside the question of
whether the grounds for the applicant’s detention continued to
be “relevant” and “sufficient” throughout its
duration, the Court finds that the authorities, in any event, cannot
be said to have displayed “special diligence” in the
conduct of the proceedings.
- Article
5 § 3 of the Convention has therefore been violated.
II. 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
Court observes that the parties’ views differed as to the date
on which the period to be taken into consideration began. The
Government considered that 1 December 2003, the date when the
applicant was arrested, should be considered the start date of the
criminal proceedings against him. In the applicant’s view 17
August 2001, the date on which charges against him were drawn up, was
of decisive importance.
- The Court reiterates that in criminal matters, the
“reasonable time” referred to in Article 6 § 1
begins to run as soon as a person is “charged”; this may
occur on a date prior to the case coming before the trial court, such
as the date of arrest, the date when the person concerned was
officially notified that he would be prosecuted or the date when
preliminary investigations were opened. “Charge”, for the
purposes of Article 6 § 1, may be defined as “the official
notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence”, a
definition that also corresponds to the test whether “the
situation of the [suspect] has been substantially affected”
(see Eckle, cited above, § 73, and Reinhardt and
Slimane-Kaïd v. France, 31 March 1998, § 93, Reports
1998 II).
- In
the present case the criminal proceedings, initially in respect of
manslaughter, were started on 16 August 1998. However, at that time
the applicant was not affected by the proceedings. He was first
interviewed on 11 August 1999. Considering the applicant’s
status as a witness and the shortness and superficiality of the
interview, the Court does not consider that the applicant became
affected on this date either. The Court finds that it is appropriate
to consider 17 August 2001 as the starting date of the criminal
proceedings in respect of the applicant. At that date a police
investigator drew up charges against the applicant, he was declared a
fugitive the authorities having failed to spot him, and a court
authorised his detention if found. The Court considers that the
applicant must have become aware on one of these days of the fact
that he had been looked for by the authorities. It takes note of the
Government’s argument that the applicant went into hiding at
that time, that he was arrested only about two years and four months
later and that therefore the period up to his arrest could not be
taken into consideration. The Court does not agree with this approach
in the context of the determination of the starting date of the
criminal proceedings. However, the applicant’s conduct is a
factor to be taken into account in the assessment of the
reasonableness of the length of the proceedings.
The
criminal proceedings came to an end on 22 April 2009 when the Supreme
Court declined to hear the applicant’s appeal. The proceedings
thus lasted some seven years and eight months at three levels of
jurisdiction.
- The
Government maintained that the applicant had lost victim status
within the meaning of Article 34 of the Convention after the Tartu
Court of Appeal’s judgment of 27 January 2009, by which the
applicant’s sentence had been reduced owing to the length of
his detention and of the court proceedings.
- The
Court, referring to its settled case-law on this issue cited above
(see paragraph 40 above), observes that the Court of Appeal in its
judgment found that the length of the proceedings in the present
criminal case had not been reasonable (see paragraph 29 above). The
Court considers that thereby the domestic judicial authorities
expressly acknowledged the breach of Article 6 §
1 of the Convention.
- In
respect of the redress afforded by the domestic authorities for the
breach of the Convention, the Court notes that the applicant had been
sentenced to thirteen and three years’ imprisonment
respectively for the two separate offences of which he had been
convicted by the County Court. The County Court had set the composite
sentence at thirteen years. The Court of Appeal, for its part,
reduced the respective sentences to eight years and one year and set
the composite sentence at eight years. The unreasonable length of the
proceedings served as the ground for the Court of Appeal to reduce
the length of the sentence. Furthermore, the Court notes that the
proceedings came to an end on 22 April 2009, when the Supreme Court
declined to hear the applicant’s appeal. This was less than
three months after the delivery of the Court of Appeal’s
judgment; thus, in the Court’s view, the subsequent proceedings
did not prolong the proceedings significantly.
- The
Court is satisfied that the domestic judicial authorities in the
present case took adequately into account the length of proceedings
in reducing the applicant’s sentence in an express and
measurable manner. Therefore, the Court considers that the applicant
was afforded appropriate redress for the alleged breach of Article 6
§ 1.
- The
Court concludes that the applicant has ceased to be a victim of an
alleged violation of Article 6 § 1 of
the Convention within the meaning of Article 34. It follows that this
complaint is manifestly ill-founded and must be rejected in
accordance with 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings inadmissible and the remainder of the
application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention.
Done in English, and notified in writing on 4 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
