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FIFTH
SECTION
CASE OF
UDOVIK v. UKRAINE
(Application
no. 39855/04)
JUDGMENT
STRASBOURG
18
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 Udovik v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 39855/04) 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 Vera Yefremovna
Udovik (“the applicant”), on 26 October 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
28 January 2009 the Court decided to give notice of the application
to the Government. It 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 1944 and lives in Vinnytsya.
- On
1 June 2000 the applicant’s son was beaten to death. On 8 June
2000 the prosecutors instituted criminal proceedings against M., D.,
Z. and C. (“the defendants”) on suspicion of having
murdered the applicant’s son. On 29 December 2000 the
prosecutors issued a bill of indictment and referred the criminal
case to courts.
- According
to the applicant, on 11 December 2000, in the framework of the
criminal proceedings, she introduced a civil claim against the
defendants for compensation and on 21 February 2003 she amended her
claim by increasing the claimed compensation. Despite the Court’s
request, the applicant has failed to provide a copy of her claim. In
their observations, the Government submitted a copy of the
applicant’s civil claim dated 21 February 2003.
- Following
the Supreme Court’s two remittals of the case for fresh
consideration, on 19 June 2009 the Staromiskyy District Court of
Vinnytsya found M. guilty of intentional infliction of grievous
bodily injuries on the applicant’s son that led to the latter’s
death and sentenced him to ten years’ imprisonment. It further
found C., Z. and D. guilty of hooliganism, sentenced them to various
terms of restriction of liberty and discharged them because the
limitation period had expired. The court also allowed the applicant’s
civil claim and ordered M. and C. to pay her certain amounts in
compensation for pecuniary and non-pecuniary damage.
- On
20 August 2009 the Vinnytsya Regional Court of Appeal upheld the
above judgment. There is no information in the case file whether the
case was further considered on cassation.
- In
the course of the proceedings, two forensic expert examinations were
carried out, the hearings were 25 times adjourned due to the
defendants’ lawyers’ and once due to the witnesses’
failure to attend them. The hearings were also four times adjourned
due to the applicant’s and the defendants’ lawyers’
failure to attend them (which delayed the proceedings to two months
approximately).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention that the length of the proceedings was not reasonable. The
Court finds that the complaint about the length of the proceedings
falls to be considered solely under Article 6 § 1, which reads,
in so far as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... , everyone is entitled to a ... hearing within
reasonable time by [a] ... tribunal ...”
- The
Court notes that the period to be taken into account began on the
date of lodging of the applicant’s civil claim for compensation
in the framework of the criminal proceedings (see Tomasi v.
France, judgment of 27 August 1992, Series A no. 241-A,
§ 124; N.B. v. Ukraine, no. 17945/02, § 36, 3
April 2008). In the light of the material available in the case file,
the Court concludes that the applicant lodged her claim on 21
February 2003. The Court further notes that the proceedings ended on
20 August 2009 having therefore lasted for six and a half years
before three levels of jurisdiction.
A. Admissibility
- The
Government maintained that the application was inadmissible as the
applicant complained of the length of the criminal proceedings and
not of the length of consideration of her civil claim lodged in the
framework of those proceedings. The applicant did not comment on that
argument.
- The
Court observes that the applicant’s right to compensation which
she sought by lodging her civil claim within the framework of
criminal proceedings depended on the outcome of those proceedings
(see Tomasi v. France, cited above, §§
120-122). Therefore, it rejects the Government’s argument.
- The
Court notes that the applicant’s complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that the application is not inadmissible
on any other grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that there has been no violation of the
Convention in the present case.
- 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court considers that the complexity of the case and the applicant’s
conduct cannot explain the overall length of the proceedings. The
Court finds that a number of delays (two expert examinations, the
repeated adjournments of the hearings due to the absence of the
defendants’ lawyers or witnesses, two remittals of the case for
fresh consideration) were attributable to the domestic courts. It
concludes that the main responsibility for the protracted length of
the proceedings rested with the State.
- 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, for instance,
Baglay v. Ukraine,
no. 22431/02, § 33, 8 November 2005, and N.B.
v. Ukraine, cited above, § 43).
- 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. It
finds 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 of the Convention.
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, costs and expenses
- The
applicant claimed EUR 20,000 in non-pecuniary damage. The Government
contested that amount.
- The
Court notes that the applicant must have sustained non-pecuniary
damage on the basis of the violation found. Making
its assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant EUR 1,400 in
compensation for non-pecuniary damage.
B. 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
(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 1,400 (one
thousand four hundred euros) in respect of non-pecuniary damage, to
be converted into the national currency of the respondent State 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 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 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
