PARTLY DISSENTING OPINION OF JUDGE YUDKIVSKA JOINED BY JUDGE ZUPANČIČ

To my regret, I am unable to follow the conclusion that the length of proceedings in the present case was in breach of Article 6 requirements.

Although the criminal proceedings against the applicant were pending over a period of seven years and seven months, three years and eight months of that period were suspended at the applicant ’ s requests , in view of the then pending related commercial proceedings. Thus , the criminal proceedings lasted formally three years and eleven months – a period which includ ed the pre-trial investigation stage and three court instances.

The majority considered that “despite the fact that it was the applicant who requested the suspension of the proceedings, the primary responsibility for the delay caused by the pending commercial proceedings, rested with the domestic courts” ( § 41). I cannot share this finding for the following reasons.

The criminal proceedings against the applicant were instituted on charges of large-scale tax evasion on the basis of relevant reports of the tax authorities. The applicant challenged these reports in parallel commercial proceedings and on three occasions he requested the Sverdlovsk Court to suspend the criminal proceedings (see §§ 10, 12 and 16 ). Moreover, he later insisted on this suspension (see § 18).

These requests were more than reasonable as the commercial courts are certainly better placed to decide on complicated matters of tax ation law. T he suspension , therefore, was clearly in the applicant ’ s own best interests. Had the commercial court found the tax reports erroneous, then the corpus delicti in the charges against the applicant would have been lacking . In these circumstances to have denied the applicant ’ s requests for adjournment would have constitute d undue haste which in itself would be i ncompatible with the requirement s of a fair trial.

It is true that Article 6 requires that judicial proceedings should be expeditious . H owever , it also lays down the more general principle of the proper administration of justice (see Boddaert v. Belgium , 12 October 1992, § 39, Series A no. 235-D). Justice delayed may be justice denied, but one should not overlook the other side of the coin - justice hurried is justice buri e d: the due process of law must not be sacrificed in an effort to provide a speedy system of criminal justice. “A concern for speed cannot dispense ... judges in the system of criminal procedure ... from taking every measure likely to throw light on the truth or falsehood of the charges” (see Neumeister v. Austria , 27 June 1968, p. 43, § 21, Series A no. 8).

A f ai r trial pursues an objective search for truth and the highest degree of certainty necessary in criminal cases was required in order to establish criminal culpability against the applicant. This required the national judicial authorities to assure a thorough and elaborate examination of the applicant ’ s tax evasion charges . Thus, they should not be reproached for their decision to await a final resolution of the commercial court concerning the lawfulness of the tax reports in order to satisfy the fundamental requirement of fair ness in the criminal proceedings.

On that subject, I also refer to the dissenting opinion of my colleague Judge David Thór Björgvinsson in the recent case of Veljkov v. Serbia (judgment of 19 April 2011): “... [S] ince the Convention protects fundamental human rights, a violation of Article 6 § 1 on the basis of the length of proceedings should only be found in cases which reveal obvious and serious deficiencies in the workings of the domestic courts in question that amount to a denial of justice and where it can thus truly be said that the applicant ’ s fundamental procedural rights have been breached”.

Allow ing the applicant ’ s request for suspension in the circumstances of the present case did not amount to a denial of justice; on the contrary, it struck a fair balance between efficiency and quality.

Furthermore, the applicant never indicated to the Sverdlovsk Court that he would have preferred the suspension to be lifted; he only insisted, at one stage, on the separation of the charges and the lift ing of the suspension with respect to one report ( § 1 7 ), which was not feasible. Neither did he submit any proof that he had tried to accelerate the commercial proceedings which, on their own, were not lengthy having regard to the c omplexity of the tax matters – three and half years before three levels of jurisdiction.

Finally, at no stage of the proceedings was the applicant detained (see, a contrario , Nakhmanovich v. Russia , § 96 , cited in the judgment ). He was under an undertaking not to abscond and I do not see a sufficient logic in finding no violation of Article 2 of Protocol No. 4 on the length of imposed restriction on liberty of movement, with a view of its proportionality in the circumstances, whilst the length of proceedings was still found disproportionate .

In sum, I remain convinced that in the special circumstances of this case the length of the criminal proceedings against the applicant was not excessive and the fair balance between the various fundamental requirements of Article 6 was not upset.

[1] . About 70,060 euros (EUR)

[2] . About EUR 74