CASE OF ORUDZHEV v. UKRAINE

FIFTH SECTION

CASE OF ORUDZHEV v. UKRAINE

(Application no. 3080/06)

JUDGMENT

STRASBOURG 

21 December 2010

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

In the case of Orudzhev v. Ukraine,

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

Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 30 November 2010,

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

PROCEDURE

1. The case originated in an application (no. 3080/06) 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 Fikrat Enver Ogly Orudzhev (“the applicant”), on 22 December 2005.

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

3. On 24 November 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1952 and lives in Mykolayiv.

1. Criminal proceedings against the applicant

5. On 21 February 2001 the prosecutors instituted criminal proceedings against the applicant, co-founder of a private company S., on suspicion of embezzlement. In particular, the applicant was accused of having misappropriated the funds of the company S.

6. On 21 May 2001 the applicant was charged with embezzlement. He gave an undertaking not to abscond.

7. On 27 July 2001 the prosecutors completed the investigations, issued an indictment and sent the case to the Bilozerka Court for trial.

8. On 10 September 2001 the prosecutors refused the applicant's request to institute criminal proceedings against M., a co-founder of the same company, on charges of embezzlement of the company's property.

9. On 22 October 2001 the Bilozerka Court found the applicant guilty of embezzlement and sentenced him to two years' imprisonment and a prohibition on holding managerial positions for two years. It ordered the applicant's placement in detention pending the judgment's entry into force.

10. On 26 February 2002 the Kherson Regional Court of Appeal quashed the judgment of 22 October 2001 and sent the case for additional investigations. It found that the prosecutors and the first-instance court had failed to investigate and assess all the circumstances of the case and that the court had not provided the applicant with a translation of the judgment. The Court of Appeal also ordered the applicant's release.

11. On 1 July 2002 the prosecutors changed the charges against the applicant and accused him of arbitrary behaviour.

12. On 21 October 2002 the Deputy Prosecutor of the Kherson Region quashed the ruling of 1 July 2002 and stated that the charges against the applicant should be qualified as embezzlement.

13. Between 29 November 2002 and 28 March 2005 the applicant was put under an undertaking not to abscond.

14. On 17 December 2003 the prosecutors re-qualified the charges against the applicant as arbitrary behaviour.

15. On 28 March 2005 the Bilozirka Court discontinued the criminal proceedings against the applicant for the absence of a victim's complaint.

16. On 26 July 2005 the Kherson Regional Court of Appeal quashed the decision of 28 March 2005. It found that the criminal case on charges of arbitrary behaviour should be terminated, that the case against the applicant should be examined on the charges of embezzlement and ordered further investigation.

17. On 6 September 2005 and 16 February 2006 the Supreme Court left the applicant's appeal in cassation without examination as the decision of 26 July 2005 was not subject to appeal in cassation.

18. On 8 February 2006 the prosecutors discontinued the criminal proceedings on charges of embezzlement for lack of proof.

19. On 27 March 2006 the Prosecutor General's Office quashed the decision of 8 February 2006 and ordered further investigations.

20. On 12 July 2006 the Pecherskyy District Court of Kyiv quashed the decision of 27 March 2006 and upheld the decision of 8 February 2006.

21. On 2 June 2007 the prosecutors discontinued the proceedings instituted against the applicant on suspicion of arbitrary behaviour.

2. Civil proceedings

22. On 29 January 2001 the applicant lodged a claim with the Bilozirka Court against M. and S. seeking the division of the property of the company S. and the recovery of his property share.

23. On 10 January 2002 the Bilozirka Court rejected the applicant's claims.

24. On 18 June 2003 and 24 September 2004, respectively, the Kherson Regional Court of Appeal and the Supreme Court dismissed the applicant's appeals and upheld the judgment of 10 January 2002.

THE LAW

I. SCOPE OF THE CASE

25. The Court notes that after communication of the case the applicant introduced new complaints concerning the criminal proceedings against him. In particular, he complained under Article 3 about the conditions of his pre-trial detention and under Article 2 of Protocol No. 4 that he had been unlawfully put under the undertaking not to abscond.

26. In the Court's view, these new complaints are not an elaboration of the applicant's original complaints, on which the parties have commented. The Court therefore considers that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). They will be dealt with in a separate application.

II. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS

27. 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...”

28. The Government contested that argument. They submitted that the case at issue had been complex and it had required the investigators to perform a number of investigative actions. They further maintained that by failing to appear before the courts the applicant and his lawyer had contributed to the length of the proceedings and that there had been no delays attributable to the State authorities.

29. The Court notes that the period to be taken into consideration began on 21 February 2001 and ended on 2 June 2007. It thus lasted six years and three months.

A. Admissibility

30. 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

31. 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 notes 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).

32. Turning to the facts of the present case, the Court notes that the criminal case in question was not particularly complex. It concerned charges of misappropriation of funds and did not involve any complicated factual or legal issues and the applicant was the only defendant in the case.

33. The Court further notes that despite the lengthy investigations (about six years in total) the charges against the applicant were eventually dropped for lack of evidence. Although there might have been delays caused by the applicant's or his lawyer's behaviour, as suggested by the Government, the Court finds that the primary responsibility for the excessive length of the proceedings rested with the domestic authorities.

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 Pélissier and Sassi, cited above; and Polishchuk v. Ukraine, no. 21231/04, §§ 31-32, 15 October 2009).

35. 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. 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.

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

III. OTHER COMPLAINTS

36. The applicant further complained under Article 5 § 1 (a) and (c), Article 5 §§ 2, 4 and 5 of the Convention of his unlawful detention. He also alleged a violation of Article 6 §§ 2, 3 (a) and (e), Articles 13, 14 and 17 of the Convention and Article 2 § 1 of Protocol No. 7, stating that the proceedings had been unfair and complained that contrary to Article 3 of Protocol No. 7 the State authorities had not compensated him for the criminal case unlawfully instituted against him. The applicant complained under Article 1 of Protocol No. 1 about the damage allegedly caused to his company and his loss of earnings as a result of the criminal proceedings against him and submitted that the State authorities had allegedly failed to protect his property.

37. In the light of the materials in its possession, the Court finds that the applicant's complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

38. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. 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

40. The applicant claimed 25,000,000 euros (EUR) in respect of pecuniary damage, 41,888 Ukrainian hryvnias (UAH)[1] and EUR 5,000,000 in compensation for the damage allegedly caused to his health and UAH 11,244,501[2] in respect of non-pecuniary damage.

41. The Government contested these claims.

42. The Court does not discern any causal link between the violation found and the pecuniary damage and the damage allegedly caused to the applicant's health; it therefore rejects these claims. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage on account of excessive length of the criminal proceedings. Ruling on an equitable basis, it awards him EUR 1,400 under that head.

B. Costs and expenses

43. The applicant also claimed UAH 72,219.9[3] for the costs and expenses incurred in the course of the domestic proceedings and UAH 393.71[4] for those incurred before the Court.

44. The Government left the matter related to the expenses incurred before the Court to the Court's discretion. They contested the remainder of the claims.

45. The Court notes that the applicant provided relevant supporting documents for the amount of EUR 36 he had paid for corresponding with the Court. It therefore awards the applicant this amount for costs and expenses.

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 complaint under Article 6 § 1 concerning the 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 1,400 (one thousand four hundred euros) in respect of non-pecuniary damage and EUR 36 (thirty-six euros) for costs and expenses, plus any tax that may be chargeable, to be converted into the national currency of the respondent State 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 amounts 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 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen PhillipsRait MarusteDeputy Registrar              President

[1]. Approximately 3,800 euros (EUR).

[2]. Approximately EUR 1,031,000.

[3]. Approximately EUR 6,700.

[4]. Approximately EUR 36.

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