FIFTH SECTION

CASE OF YAKOVLEV v. UKRAINE

( Application no. 18412/05 )

JUDGMENT

STRASBOURG

26 July 2012

This judgment is final but it may be subject to editorial revision.

In the case of Yakovlev v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Mark Villiger , President, Ganna Yudkivska , André Potocki , judges, and Stephen Phillips , Deputy Section Registrar ,

Having deliberated in private on 3 July 2012 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 18412/05) 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 Oleksandr Anatoliyovych Yakovlev (“the applicant”), on 12 May 2005 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice .

3 . On 29 July 2010 the application was communicated to the Government .

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1963 and lives in Kyiv .

5 . On 15 April 2003 the applicant ’ s acquaintance Ms P. died of a knife wound following a dispute involving four persons, including the applicant.

6 . On 27 June 2003 an investigator of the Darnytskyy District Prosecutor ’ s Office opened a criminal case against the applicant on suspicion of Ms P. ’ s negligent homicide. Namely, the applicant was suspected of having accidentally pushed Ms P. on the knife held by another person. Th e applicant undert ook not to leave his place of residence .

7 . On 2 July 2003 the applicant was indicted and the case was transferred to the Darnytsky y District Court of Kyiv (“the Darnytsky y Court ” ) for trial.

8 . On 22 August 2003 the Darnytskyy Court started the trial.

9 . In the course of the proceedings the applicant filed several petitions and complaints, in particular three times challenging the presiding judge and on c e the prosecutor , and seeking remit tal of the case for additional investigation. Hearings were adjourned six times : on three occasions the adjournments followed the applicant ’ s petitions challenging the judge , on c e it was due to the witnesses ’ absence and tw ice – because the judge was ill or busy in another trial .

10 . On 10 August 2005 the Darnytskyy Court referred the case for additional investigation as requested by the applicant.

11 . On 8 February 2006 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed that ruling following the prosecutor ’ s appeal and remitt ed the case back to the first - instance court for examination.

12 . On 25 December 2006 the Darnytsky y Court however again decided that additional investigation was required in the case.

13 . On 15 May 2007 the additional investigation , which included question ing the witnesses , two forensic examinations and a repeated crime scene inspection, was completed . Meanwhile, o n 5 May 2007 the investigator additionally charged the applicant with hooliganism associated with arms ’ handling and confiscated his gun . This charge was severed from the criminal case at hand.

14 . On 30 July 2008 the Darnytskyy Court remitted the case for additional investigation once again . It noted that the pre-trial investigation undertaken had been incomplete and superficial.

15 . On 24 September 2008 the Court of Appeal upheld th at ruling .

16 . On 12 November 2009 the investigator discontinued the investigation for the absence of sufficient proof of the applicant ’ s guilt.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF PROCEEDINGS

17 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” r equirement, 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 ... ”

A. Admissibility

18 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

19 . The applicant maintained that the criminal proceedings against him had lasted unreasonably long.

20 . The Government contended that the domestic authorities had taken all reasonable efforts to expedite the consideration of th is complex in their view case , which required several expert examination s . They further referred to numerous procedural requests lodged by the applicant as reasons for delays in the proceedings .

21 . 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) . The Court further notes that an accused in criminal proceedings should be entitled to have his case conducted with special diligence, having particular regard to any restrictions on liberty imposed pending the conclusion of the proceedings (see Doroshenko v. Ukraine , no. 1328/04 , § 41, 2 6 May 2011, with further references).

22 . Turning to the facts of the present case, the Court notes that the period to be taken into consideration began on 27 June 2003 and ended on 12 November 2009, thus last ing six years four months and eighteen days for the pre-trial investigation and the first-instance court.

23 . The Court considers that a great deal was at stake for the applicant as he was in a state of uncertainty as to his legal position and his future throughout all this period and, furthermore, remained subject to an undertaking not to leave his place of residence (see Polishchuk v. Ukraine , no. 21231/04 , § 26, 15 October 2009).

24 . Given that the case at hand was confined to one criminal charge only, although involving several persons, it does not appear particularly complex.

25 . As to the applicant ’ s behaviour, the Court notes that he merely exercised his procedural rights and cannot be blamed for using the avenues available to him under the domestic law in order to protect his interests (see Silin v. Ukraine , no. 23926/02, § 29, 13 July 2006). In any event, the delays attributable to him were insignificant.

26 . The same cannot be said about the authorities ’ conduct . The Court observes, in particular, that more than three years after the case was sent for trial, the first-instance court found the pre-trial investigation to be flawed and ordered additional investigation to be undertaken. This additional investigation was however criticised as well, and the trial court had to order another round of investigation. Eventually, the charge against the applicant was dropped by the investigative authorities themselves, without going through judicial review.

27 . The Court has already found in a number of judgments that repeated remittals of a case for re-investigation and prolonged failure of the authorities to produce to the court a case ready for trial may be indicative of a serious deficiency in the operation of the criminal justice machinery ( see Kiryakov v. Ukraine, no. 26124/03 , § 64, 12 January 2012, with further references).

28 . The present case is another example disclosing this problem. The Court therefore considers that the length of the proceedings was mainly attributable to the State authorities 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

29 . The applicant also complained under Article 2 of the Convention about the alleged ly inadequate investigat ion of the death of Ms P. Referring to Article 6 §§ 1, 2 and 3 (a), (b) , as well as Article 13 of the Convention , he further complained about the alleged unfairness of the criminal proceedings against him . The applicant also complained under Article 2 of Protocol No. 7 about his inability to challenge on appeal the rejection by the investigator and by the trial court of his numerous petitions. He next complained under Article 1 of Protocol No. 1 in respect of the confiscation of his gun . Lastly, t he applicant complained under Article 2 of Protocol No. 4 about the lengthy restriction o n his liberty on account of the obligation not to leave his place of residence .

30 . Having considered the applicant ’ s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

31 . It follows that this part of the application must be declared inadmissible as manifestly ill-founded, purs uant to Article 35 §§ 3 (a) and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

32 . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

33 . The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage.

34 . The Government co ntested the claim.

35 . The Court finds that the applicant may be considered to have suffered some degree of frustration and distress as a result of the violation in this case. Ruling on an equitable basis, it awards him EUR 1,500 in respect of non-pecuniary damage.

B. Costs and expenses

36 . The applicant did not claim any award under this head. The Court therefore gives no award.

C. Default interest

37 . The Court considers it appropriate that the default interest rate 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

1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 1,500 ( one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into the national currency of Ukraine at the rate applicable at 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 poin ts;

4 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 26 July 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Mark Villiger              Deputy Registrar President