CASE OF FARAFONOVA v. UKRAINE

FIFTH SECTION

CASE OF FARAFONOVA v. UKRAINE

(Application no. 28780/02)

JUDGMENT

STRASBOURG 

11 December 2008

FINAL

11/03/2009

This judgment may be subject to editorial revision.

In the case of Farafonova v. Ukraine,

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

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 18 November 2008,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in an application (no. 28780/02) 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, Ms Irina Anatolyevna Farafonova (“the applicant”), on 19 October 2000.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

3. The applicant alleged, in particular, of the excessive length of the proceedings in her criminal case and lack of effective remedies in that respect.

4. On 27 November 2006 the Court declared the application partly inadmissible and decided to communicate the complaints under Articles 6 § 1 and 13 concerning the excessive length of the proceedings and lack of effective remedies to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the remainder of the application at the same time as its admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1965 and lives in Kharkiv.

6. On 14 June 2001 criminal proceedings against the applicant were instituted for hooliganism.

7. On 30 July 2001 the applicant was placed under an undertaking not to abscond.

8. On 1 August 2001 the applicant was committed for trial.

9. On 7 September 2001 the Chervonozavodsky District Court of Kharkiv (“the Chervonozavodsky Court”) found the case ready for examination.

10. On 24 September 2001 the President of the Chervonozavodsky Court allowed the applicant’s request to remove a judge in her case.

11. On 4 December 2001 the President of the Kharkiv Regional Court of Appeal (“the Court of Appeal”) changed the case’s territorial jurisdiction and referred it to the Zhovtnevy District Court of Kharkiv (“the Zhovtnevy Court”).

12. On 25 December 2001 the Zhovtnevy Court remitted the case to the Chervonozavodsky District Prosecutor’s Office for additional investigation.

13. On 12 June 2002 the Court of Appeal upheld this ruling with minor changes.

14. On 5 August 2002 the additional investigation was completed and the case was referred to the Zhovtnevy Court.

15. On 30 September 2002 the Zhovtnevy Court remitted the case to the Chervonozavodsky District Prosecutor’s Office for additional investigation.

16. On 26 November 2002 the Court of Appeal quashed this decision and remitted the case for renewed consideration to the first instance court.

17. On 29 April 2003 the Zhovtnevy Court found the case ready for examination.

18. On 27 June 2003 the Zhovtnevy Court adjourned the proceedings untill 26 August 2003 due to the prosecutor’s absence.

19. On 13 June 2006 the Zhovtnevy Court found the applicant guilty of hooliganism and sentenced her to three years’ suspended imprisonment. The applicant was exempted from serving her sentence since the charges against her had become time-barred.

20. On 31 October 2006 and 17 January 2008 the Court of Appeal and the Supreme Court, respectively, upheld the judgment.

21. Throughout the pre-trial investigation and the trial proceedings the applicant lodged some 211 complaints, motions, petitions, requests and appeals. She mainly complained about allegedly unlawful actions of the investigative authorities, the prosecutor’s office and the judges who considered her criminal case and challenged the procedural decisions taken by them. In particular, the applicant lodged 30 motions challenging the judge who considered her case, 5 motions challenging the prosecutor.

22. In the course of the trial proceedings some nineteen hearings were adjourned since the court had to consider numerous requests, motions, petitions and complaints lodged by the applicant. Five adjournments were due to the applicant’s or her lawyer’s absence or the applicant’s requests for adjournment. Four hearings were adjourned on account of witnesses’ or victims’ failures to appear. Eleven hearings were adjourned since the judge was involved in other proceedings, and one hearing was adjourned on account of the judge’s illness.

THE LAW

I. SCOPE OF THE CASE

23. In reply to Government’s observations the applicant invoked Articles 7 § 1 and 8 §§ 1, 2 of the Convention referring to the same facts. The Court notes that these complaints were not included in the initial application, on which the Government have already commented. Accordingly, the Court does not find it necessary to examine them.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

24. 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...”

25. The Government contested that argument.

26. The period in question started on 14 June 2001 and ended on 17 January 2008. It thus lasted more than 6 years and 7 months for three levels of jurisdiction.

A. Admissibility

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

B. Merits

28. The Government submitted that the applicant contributed significantly to the length of proceeding by lodging numerous motions, requests, appeals and complaints and challenging the judges.

29. 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). It further recalls that an accused in criminal proceedings should be entitled to have his case conducted with special diligence (see Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006).

30. The Court considers that much was at stake for the applicant as she suffered a feeling of uncertainty in respect of her future and was under an obligation not to leave her place of residence.

31. As regards the complexity of the case, the Court notes that the proceedings at issue concerned one simple episode of hooliganism and required the questioning of ten witnesses and three victims. The applicant was the only accused in this case.

32. As concerns the applicant’s numerous motions and complaints, including motions to challenge the judges, the Court recalls that the applicant cannot be blamed for using the avenues available to her under domestic law in order to protect her interests (see, Siliny v. Ukraine, no. 23926/02, § 29, 13 July 2006).

33. The Court considers that a number of delays (in particular, remittals of the case for a fresh consideration and for additional investigation, and adjournments of the case due to the judge’s participation in other hearings) are attributable to the Government.

34. 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 Artsybashev v. Ukraine, no. 1282/03, §§ 24-29, 12 June 2008; Yurtayev v. Ukraine, no. 11336/02, §37-42, 31 January 2006, and Mazurenko v. Ukraine, no. 14809/03, § 52-56, 11 January 2007).

35. Having examined all the materials 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. Even if the applicant contributed to the length of proceedings in some respects, her behaviour cannot be relied upon to justify the overall length of proceedings. Having regard to its case-law on the subject the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement

36. There has accordingly been a breach of Article 6 § 1.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

37. The applicant further complained about the alleged lack of an effective remedy in respect of her complaint about a violation of Article 6 § 1 of the Convention. She invoked Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

38. The Government argued that it was not necessary to examine this complaint since there was no violation of Article 6 § 1 in this case.

39. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). The Court further refers to its finding in the Merit case about the lack of an effective and accessible remedy under domestic law for complaints in respect of the length of criminal proceedings (see, Merit v. Ukraine, cited above, §§ 78-79).

40. The Court concludes, therefore, that there has been a violation of Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

41. 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

42. The applicant claimed 500,000 euros (EUR) in respect of pecuniary damage. She also claimed EUR 999,000,000 in respect of non-pecuniary damage.

43. The Government contested these claims.

44. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,400 under that head.

B. Costs and expenses

45. The applicant did not submit any separate claim for costs and expenses. Accordingly, the Court considers that there is no call to award her any sum on that account.

C. Default interest

46. 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

1. Declares the remainder of the application admissible;

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

3. Holds that there has been a violation of Article 13 of the Convention;

3. 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 Ukraine 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.

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

Done in English, and notified in writing on 11 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekPeer Lorenzen
RegistrarPresident

Full & Egal Universal Law Academy