Information Note on the Court’s case-law 62

March 2004

Merit v. Ukraine - 66561/01

Judgment 30.3.2004 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Availability of effective remedies in respect of excessive length of proceedings

The case concerns the length of criminal proceedings. The Government raised a preliminary objection on the ground of failure to exh aust domestic remedies.

Extracts: “[T]he Court finds that the applicant had an opportunity to complain to the relevant court as from 23 May 2001 and 29 June 2001 against the resolution of 19 September 2000 of the prosecutor …. by which the criminal investi gation against him was resumed. The applicant could have done so either in the course of civil proceedings under Article 248-3 of the [Code of Civil Procedure] or in the course of criminal proceedings under Article 234 of the [Code of Criminal Procedure]. The Court considers therefore that it is necessary to examine whether these remedies satisfied the criteria of Article 35 § 1 of the Convention.

As to the lodging of complaints with the superior prosecutor, which in accordance with the observations of the Government have to be considered effective remedies, the Court finds that they cannot be considered “effective” and “accessible” since the status of the prosecutor in the domestic law and his participation in the criminal proceedings against the applicant do not offer adequate safeguards for an independent and impartial review of the applicant’s complaints.

…. It is …. indisputable that prosecutors, in the exercise of their functions, are subject to the supervision of an authority belonging to the executi ve branch of the Government. In the Court’s view, the mere fact relied on by the Government that under the applicable laws prosecutors, in addition to exercising a prosecutorial role, also act as guardian of the public interest, cannot be regarded as confe rring on them a judicial status or the status of independent and impartial actors. It notes that prosecutors perform investigative and prosecuting functions and, therefore, their position in the criminal proceedings as provided for by the law at the materi al time …. must be seen as that of a party to these proceedings. The Court notes therefore that recourse to the prosecutor, who was a party to the criminal proceedings in the instant case, did not offer reasonable prospects of success as it was not “effect ive”. The applicant was therefore not under an obligation to avail himself of this remedy.

In so far as it is suggested that the applicant should have used the remedy under Article 248-3 of the [Code of Civil Procedure], the Court finds that by using this remedy the applicant could have complained to the domestic courts about the acts of a parti cular investigator or prosecutor as State officials. It notes that while it is true that the applicant did not institute civil proceedings to remedy the lengthy investigation in his case, the Government have not shown how recourse to such proceedings could have remedied the delay in the investigation of the case. The Court finds the examples supplied by the Government from the domestic case-law of limited assistance in this connection.

In so far as it is suggested that the applicant should have used the rem edy under Article 234 of the CCRP, the Court notes that this remedy could have been used as from 29 June 2001 only in the course of the preliminary (administrative) hearing ( попереднє засідання суду )or in the course of the hearing on the merits of the case . The Court finds therefore that this remedy does not satisfy the criteria of Article 35 § 1 as regards the notion of accessibility, as it suggests that complaints against the length of the investigation of the case can be made after the investigation has finished, but leaves no possibility of appeal in the course of the investigation. As to the introduction of amendments to Article 234 of the [Code of Criminal Procedure], allowing for complaints to be lodged against the prosecutor or investigator in the co urse of the investigation, the Court considers that even though this remedy exists in theory as from 30 January 2003, the Government have not shown what its practical implications are. Furthermore, the law does not specifically state whether Article 234 of the [Code of Criminal Procedure] is a remedy for the length of proceedings in a criminal case and what kind of redress can be provided to an applicant in the event of a finding that the length of the investigation breached the requirement of “reasonablene ss”.

In these circumstances, the Court considers that it has not been sufficientlyestablished that recourse to the remedies suggested by the Government would have been capable of affording redress to the applicant in relation to his complaints concerning the length of the proceedings in his case.”

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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