FIFTH SECTION
DECISION
Application no. 7697/02
by Vitaliy Terentyevich LEE
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 6 November 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs c. westerdiek, Section Registrar,
Having regard to the above application lodged on 8 November 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vitaliy Terentyevich Lee, is a Ukrainian national, born in 1960. He is currently serving his sentence in Torez Penitentiary no. 28 of the Donetsk region, Ukraine. He is represented before the Court by Mr Vyacheslav Leonidovich Bulayev, an advocate practicing in Donetsk. The respondent Government are represented by its Agent, Mr Yu. Zaytsev.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Criminal proceedings were instituted against the applicant on 23 October 1997 for extortion.
On 27 February 1998 the applicant was detained on suspicion of being involved in extortion committed by an organised criminal group of three persons (Article 144 of the Criminal Code).
On 30 December 1998 the Central City Court of Gorlovka, chaired by judge S.V.I., sentenced the applicant to two years’ imprisonment and a UAH 300[1] fine for injuries inflicted by him, acting in an organised group of persons, on a private person. The applicant was acquitted of extortion. On 23 February 1999 the Donetsk Regional Court, composed of judges S.A.I., N.G.I. and K.V.F., upheld this conviction and sentence, which thereby became final.
The Deputy President of the Donetsk Regional Court lodged a protest with the Presidium of that court, seeking the initiation of supervisory review proceedings in the case.
On 27 February 1999 the Presidium of the Donetsk Regional Court quashed the judgment of 30 December 1998 and the ruling of 23 February 1999, and remitted the case for additional investigation. It also decided not to change the remand measure applied to the applicant.
On 22 July 1999 the Central District Court of Gorlovka, chaired by judge T.A.B., convicted the applicant, acting in a group, of inflicting bodily injury on a private person (Articles 107, 123 and 102 of the Criminal Code). It sentenced the applicant to three years and six months’ imprisonment. On 30 November 1999 the Donetsk Regional Court, composed of judges K.I.I., F.A.V. and M.N.A., quashed the judgment of 22 July 1999 and remitted the case for a re-examination on its merits to a different first-instance court, finding that the previous court had insufficiently examined the charge of extortion. It also decided not to change the remand measure imposed on the applicant.
On 22 June 2000 the Kuybyshevsky District Court of Donetsk, chaired by judge F.V.I. in a closed hearing in the presence of the parties, sentenced the applicant to ten years’ imprisonment and the confiscation of his private property, following his conviction for extortion committed by an organised criminal group composed of three persons. It also decided to transfer the applicant to a Pre-Trial Investigative Detention Centre. It ordered the applicant and his two accomplices to pay the victims of the crime UAH 28,799[2] and UAH 50,250[3] in compensation for pecuniary and non-pecuniary damage, respectively.
On 1 June 2001 the Donetsk Regional Court upheld the judgment of 2 June 2000 regarding the conviction and sentence but quashed it regarding the award of compensation, which was remitted to the Kuybyshevsky District Court of Donetsk to be heard by a differently composed bench. The judgment became final as to the applicant’s conviction.
B. Relevant domestic law and practice
The relevant domestic law and practice in relation to the applicant’s complaints under Article 3 and 5 of the Convention are cited in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 54 and 60, ECHR 2005‑... (extracts)). The relevant domestic law and practice in relation to the applicant’s complaints under Article 6 are cited in the judgment of Salov v. Ukraine (no. 65518/01, §§ 38 - 40, 6 September 2005).
COMPLAINTS
The applicant complained about the infringement of Article 6 § 1 of the Convention as his case was not heard by the domestic authorities within a reasonable time by an independent and impartial tribunal established by law. He also complained that the first-instance court had to act in accordance with the instructions of the Regional Court in finding the applicant guilty of extortion, and thus erred in the assessment of the facts and in the application of the law. He also complained that there was no public hearing of his case before the Kuybyshevsky District Court of Donetsk on 22 June 2000.
The applicant next complained about the unreasonable length and poor conditions of his detention, while awaiting the decision on the merits of his case. He invokes Article 3 of the Convention. Moreover, he alleges that his detention was unlawful and that he did not have any effective remedies for his complaints about that (Article 5 § 4 of the Convention). He further refers to Article 5 §§ 1(c) and 3 of the Convention.
Finally, he complained that he was convicted for a second time of a crime for which he had already been acquitted. He refers to Article 4 of Protocol No. 7 to the Convention.
THE LAW
On 16 September 2006 the Court received the following declaration, signed by the applicant:
“I, Mr Vitaliy Terentyevich Lee, note that the Government of Ukraine are prepared to pay me ex gratia the sum of 10,000 euros to Mr Vitaliy Terentyevich Lee with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into national currency of Ukraine (UAH) at the rate applicable on the date of payment, and free of any taxes that may be applicable, and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.
I note the acceptance by the Government in their Declaration of the following:
- that my complaints under Article 3 of the Convention about the conditions of detention (the size of cell and the number of persons in it, the bedding and hygienic conditions, ventilation, nutrition, daily walks, etc.) raise an issue similar to the one in which the Court has found a violation of Article 3 in the case of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 86 - 88, ECHR 2005‑... (extracts));
- that my complaints under Article 5 §§ 1, 3 and 4 of the Convention raise issues similar to those in which the Court has found a violation of Articles 5 §§ 1, 3 and 4 in cases of Salov v. Ukraine (no. 65518/01, §§ 58 - 60, ECHR 2005‑... (extracts)) and Nevmerzhitsky (§§ 121, 129 and 138, cited above);
- that my complaints under Article 6 § 1 of the Convention raise issues to those in which the Court has found a violation of Article 6 § 1 of the Convention in case of Salov v. Ukraine (no. 65518/01, § 86, ECHR 2005‑... (extracts)) and Savinskiy v. Ukraine (no. 6965/02, § 27, 28 February 2006).
I also note that the Government undertakes to publish the decision adopted on the basis of this declaration in an official publication [to be proposed by the Government] and that they have undertaken to accelerate the procedure for enforcement of the aforementioned judgments in the cases of Nevmerzhitsky, Salov and Savinskiy with a view to adopting general measures aimed at preventing similar violations of the provisions of the Convention and the Protocols thereto in the future.
I accept the proposal and waive any further claims against Ukraine in respect of the facts giving rise to this application. I declare that the payment of the sum mentioned above and publication of the decision adopted on the basis of this declaration in [to be proposed by the Government] constitutes a final resolution of the case.”
On 23 May 2006 the Court received the following declaration from the Government:
“I, Yuri Yevgenovych Zaytsev, the Agent of the Government of Ukraine, declare that the Government of Ukraine offer to pay ex gratia 10,000 euros to Mr Vitaliy Terentyevich Lee with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum which is, to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into national currency of Ukraine (UAH) at the rate applicable on the date of payment, and free of any taxes that may be applicable, and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
It is further accepted by the Government that:
- the applicant’s complaints under Article 3 of the Convention about the conditions of his detention (the size of cell and the number of persons in it, the bedding and hygienic conditions, ventilation, nutrition, daily walks, etc.) raise an issue similar to the one in which the Court has found a violation of Article 3 in the case of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 86 - 88, ECHR 2005‑... (extracts));
- the applicant’s complaints under Article 5 §§ 1, 3 and 4 of the Convention raise issues similar to those in which the Court has found a violation of Articles 5 §§ 1, 3 and 4 in cases of Salov v. Ukraine (no. 65518/01, §§ 58 - 60, ECHR 2005‑... (extracts)) and Nevmerzhitsky (§§ 121, 129 and 138, cited above);
- the applicant’s complaints under Article 6 § 1 of the Convention raise issues to those in which the Court has found a violation of Article 6 § 1 of the Convention in case of Salov v. Ukraine (no. 65518/01, § 86, ECHR 2005‑... (extracts)) and Savinskiy v. Ukraine (no. 6965/02, § 27, 28 February 2006).
The Government undertakes to publish the decision adopted on the basis of this declaration in an official publication [to be proposed by the Government]. They also undertake to accelerate the procedure for enforcement of the aforementioned judgments in the cases of Nevmerzhitsky, Salov and Savinskiy with a view to adopting general measures aimed at preventing similar violations of the provisions of the Convention and the Protocols thereto in the future.
The payment of the sum mentioned above and publication of the decision adopted on the basis of this declaration in [publication proposed by the Government] will constitute the final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. EUR 65.03.
[2]. EUR 5,601.82.
[3]. EUR 9,774.36.
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