FIFTH SECTION

CASE OF KOSTAKOV v. UKRAINE

(Application no. 32568/05)

JUDGMENT

STRASBOURG

9 December 2010

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

In the case of Kostakov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Commitee composed of:
	Rait Maruste, President,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 16 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 32568/05) 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 Sergey Yuryevich Kostakov (“the applicant”), on 22 August 2005.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  On 11 January 2010 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application is assigned to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1972 and lives in Kyiv.
5.  On 27 June 2000 the applicant was arrested. The applicant, Mr D., and Mr B. were charged with one count of robbery. The applicant was also charged with handling of two handguns with cartridges.
6.  On 25 September 2000 the proceedings against Mr B. were disjoined.
7.  On 27 July 2001 the applicant was released having given a written undertaking not to abscond.
8.  In the period prior to 10 October 2002 the Darnitsky District Court of Kyiv (the district court) remitted the case twice for additional pre-trial investigation.
9.  On 10 October 2002 the district court found the applicant guilty and sentenced him to five years’ imprisonment. The applicant was arrested.
10.  On 4 June 2003 the Kyiv City Court of Appeal (the court of appeal) quashed the part of the judgment concerning the applicant’s conviction and remitted the case for fresh consideration to the district court. The court of appeal upheld the applicant’s detention on remand.
11.  On 14 November 2003 the district court remitted the case for additional pre-trial investigation. The applicant was remanded in custody.
12.  On 14 April 2004 the court of appeal quashed the ruling of 14 November 2003 and remitted the case to the district court for consideration. By the same decision it upheld the applicant’s detention on remand.
13.  On 9 June 2004 the Supreme Court dismissed the applicant’s appeal in cassation against the ruling of 14 April 2004.
14.  On 7 July 2004 the applicant was released having given a written undertaking not to abscond.
15.  On 23 December 2005 the district court sentenced the applicant to four years and 10 days’ imprisonment.
16.  On 22 November 2006 and 12 June 2007 the court of appeal and the Supreme Court, respectively, upheld the judgment of 23 December 2005.
17.  According to the records provided by the Government, the applicant challenged a judge sitting in his case on six occasions, and once he challenged a prosecutor. On three occasions the applicant failed to appear.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18.  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 ...”
19.  The Government contested that argument.
20.  The period to be taken into consideration began on 27 June 2000 and ended on 12 June 2007. It thus lasted almost seven years.
A.  Admissibility
21.  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
22.  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). What is at stake for the applicant has also to be taken into consideration. In this respect the Court recalls that an accused in criminal proceedings should be entitled to have his or her case conducted with special diligence and Article 6 is, in criminal matters, designed to ensure that a person who has been charged does not remain for too long in a state of uncertainty about his or her fate (see Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006).
23.  Although some delays can be attributed to the applicant, the Court notes that the major delays were caused by the remittals of the case. In this respect the Court reiterates that a repetitive re-examination of the case within one set of proceedings can disclose a serious deficiency in the domestic judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003).
24.  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).
25.  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, it considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
26.  There has accordingly been a breach of Article 6 § 1 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
27.  The applicant complained under Article 6 § 1 about the length and unfairness of the proceedings. He further alleged under Article 6 § 3 (c) that on an unspecified date in 2002 the judge of the district court had dismissed his request for a representative. He also alleged under the same Article that from 2004 to 2005 he had been represented by a lawyer, appointed ex officio despite his objection.
28.  The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand. He further invoked Articles 6 § 3 (a) and (d) and 5 § 4 of the Convention referring to the facts of the case. Lastly, the applicant alleged that his right to dignity, his right to freedom and personal inviolability and his right to freedom of movement as guaranteed by Articles 28, 29 and 33 of the Constitution of Ukraine had been violated.
29.  Having carefully examined the applicant’s submissions in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
30.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
31.  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.”
32.  The applicant informed the Court that he had no intention to submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint 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.
Done in English, and notified in writing on 9 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste
	Deputy Registrar	President