Last Updated on May 19, 2019 by LawEuro
FIFTH SECTION
CASE OF GORKOVLYUK AND KAGANOVSKIY v. UKRAINE
(Application no. 49785/06)
JUDGMENT
This version was rectified on 19 November 2018
under Rule 81 of the Rules of Court.
STRASBOURG
4 October 2018
This judgment is final but it may be subject to editorial revision.
In the case of Gorkovlyuk and Kaganovskiy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 11 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 49785/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Ms Irina Valeryevna Gorkovlyuk (“the first applicant”) and Mr Stanislav Yulyevich Kaganovskiy (“the second applicant”), on 1 December 2006.
2. The applicants were represented by Mr Iftikhar Ahmad Khattak, a lawyer practising in Odessa. The UkrainianGovernment (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna, of the Ministry of Justice.
3. The first applicant complained in particular under Article 3 of the Convention of the lack of an effective domestic investigation into her allegation of ill-treatment by the police. She next complained under Article 6 § 1 about the length of criminal and civil proceedings against her. Furthermore, the first applicant complained under Article 2 of Protocol No. 4 about the length of an obligation not to leave her town of residence which had been imposed on her. Both applicants also complained under Article 1 of Protocol No. 1 about the police seizure of the second applicant’s property and his unsuccessful attempts to get it back.
4. On 6 September 2010 the first applicant’s above complaints under Article 6 § 1 of the Convention and Article 2 of Protocol No. 4 were communicated to the Government.
5. On 14 March 2017 the Vice-President of the Section decided, under Rule 54 § 2 (c) of the Rules of Court, that the parties should be invited to submit further written observations on the admissibility and merits of the first applicant’s complaint under Article 3 of the Convention, as well as on the applicants’ complaint under Article 1 of Protocol No. 1.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1973 and 1970 respectively, and live in Odessa. They are a married couple.
7. At the time of the events the first applicant was an accountant in a private food-processing company (“company Y.”). Her mother, N., was its director and owner. The second applicant was a private entrepreneur supplying company Y. with raw materials in exchange for processed foodstuffs.
A. Events of 24 July 2001 and related facts
8. On 23 July 2001 the Odessa Prymorskyy district prosecutor’s office (“the Prymorskyy prosecutor’s office”) opened a criminal case against the officials of company Y. on suspicion of forgery of quality certificates for the company’s goods.
9. On the following day the police conducted a search on the company’s premises, as a result of which they seized a considerable volume of foodstuffs belonging to the second applicant.
10. There was an altercation between the first applicant and the police: she attempted to leave, but several officers stopped her when she was already in her car, dragged her out and handcuffed her (see paragraphs 16, 31, 35 and 38 below for additional factual details). As the first applicant lost control of her vehicle, it collided with a car parked nearby, which belonged to a private person, G.
11. On 24 May 2002 the Odessa Prymorskyy District Court (“the Prymorskyy Court”) quashed the prosecutor’s decision of 23 July 2001 (see paragraph 8above) as unlawful.
B. Complaints raised at domestic level regarding the alleged ill‑treatment of the first applicant
12. On 24 July 2001 N. (the first applicant’s mother and the director of company Y. – see paragraph 7 above) complained to the Prymorskyy prosecutor’s office about the events of 24 July 2001. She submitted in particular that the first applicant had been beaten by the police.
13. On the following day N. sent a similar complaint to the city and regional prosecuting authorities, as well as the Prosecutor General’s Office.
14. On 30 July 2001 the first applicant complained to the Prymorskyy Court about her alleged ill-treatment on 24 July 2001 at the time of her arrest. She asked the court to declare the officers’ actions unlawful and to oblige them to make a public apology to her.
15. On 6 December 2001 the Prymorskyy Court forwarded the above complaint to the Odessa Suvorivskyy district prosecutor’s office (“the Suvorivskyy prosecutor’s office”) for investigation.
16. On 20 December 2001 the Suvorivskyy prosecutor’s office refused to institute criminal proceedings against the police officers for lack of the constituent elements of a criminal offence in their actions. The prosecutor gave the following reasonsfor that decision. The first applicant had arrived at company Y. during the police search and had tried to leave the premises before the search had been completed. She had “deliberately inflicted minor bodily injuries on [two police officers] who had tried to stop her illegal actions”. Furthermore,a medical examination of the first applicant of 25 July 2001 had documented in particular an abrasion below her right eye, a bruise on her chest and a bruise on her left thigh. However, “she had sustained those injuries in circumstances which [she was] concealing”. The first applicant had also had bruises on her wrists and arms. Those had resulted from her forceful removal from the car and her subsequent handcuffing, both of which were deemed to be legitimate restraint measures. The prosecutor observed that the first applicant’s arrest by the police and the events thereafter had been videorecorded, and that the videotape confirmed the police officers’ account.
17. On 26 December 2001 the first applicant received a copy of the above ruling.
18. She challenged the ruling before the Odessa Suvorivskyy District Court (“the Suvorivskyy Court”). As confirmed by a postal receipt, the first applicant sent the above complaint on 3 January 2002 and the court received it on 4 January 2002.
19. On 10 January 2002 the Suvorivskyy Court dismissed the first applicant’s complaint without examining it on the grounds that it had been introduced out of time. According to the court’s ruling, she had lodged it on 9 January 2002[1], whereas she had had to do so within seven days of 26 December 2001.
20. On 21 January 2002 the first applicant appealed against the above ruling to the Odessa Regional Court of Appeal. She submitted that the correct date on which she had lodged her complaint was 3 January 2002[2] and she had not missed the seven-day time-limit, given that there had been official holidays during which neither the post office nor the court had been open.
21. On 27 February 2004 the first applicant enquired with the Suvorivskyy Court about the progress of her appeal. In accordance with the relevant procedure, she had submitted the appealvia the court’s registry and the registry had been responsible forforwarding it to the appellate court.
22. On 1 April 2004 the President of the Suvorivskyy Court replied to the first applicant that her appeal had indeed been received on 21 January 2002. However, the clerk who had registered it had been dismissed in February 2003. Atthe time of writing, there were no records of the first applicant’s appeal in the court’s information system.
23. On 7 July 2004 the first applicant asked the Suvorivskyy Court to restore the proceedings concerning her appeal of 21 January 2002 which had apparently been mislaid. She received the reply that such an action was impossible, given that there was no appeal before the court.
24. On 26 April 2005 the first applicant again challenged the prosecutor’s ruling of 20 December 2001 before the Suvorivskyy Court.
25. The case file does not contain any further information in that regard.
C. Criminal proceedings against the first applicant
26. On 19 September 2001 criminal proceedings were instituted against the first applicant on suspicion of having inflicted minor bodily injuries on the police officers.
27. On 3 December 2001 an obligation not to leave her town of residence was imposed on the first applicant as a preventive measure pending her trial.
28. On 7 March 2002 the investigator rejected a request by the first applicant for a forensic medical examination to establish the seriousness of her injuries sustained on 24 July 2001. The reason for the rejection was that on 20 December 2001 the prosecutor had refused to institute criminal proceedings regarding the matter (see paragraph 16above).
29. On 11 March 2002 the pre-trial investigation was completed and the case was referred to court for trial.
30. The Suvorivskyy Court adjourned hearings on several occasions owing to the absence of the first applicant and the absence of the victims and witnesses. One of the adjournments, which lasted almost eight months, was at the first applicant’s request,because she was pregnant.
31. On 17 September 2004 the Suvorivskyy Court found the first applicant guilty of deliberately inflicting minor bodily injuries on law‑enforcement officials and sentenced her to one year’s imprisonment, suspended for one year. The court relied in particular on the videotape of the events of 24 July 2001, as well as reports on the officers’medical examination of 25 July 2001 which documented the injuries which they had possibly sustained a day earlier. One of them had a bite wound on his right wrist possibly originating from a human bite, and an abrasion on his right hand that might have resulted from scratching by handcuffs. Another officer had abrasions on his face and right arm possibly resulting from being scratched with fingernails. The preventive measure in respect of the first applicant – the obligation not to leave town – remained the same.
32. The first applicant appealed. She submitted in particular that the trial court had failed to examine her own allegation of ill-treatment by the police. She noted in that regard that, as shown on the videotape, at 2.30 p.m. she had had no visible injuries, whereas at 4.10 p.m. on that day there had been a bruise below her eye.
33. On 23 September 2004 the President of the Odessa Regional Court of Appeal acknowledged the excessive length of the criminal proceedings against the first applicant in a letter sent to her following her complaints in that regard. The letter stated that the judge of the first-instance court who was dealing with her case had been disciplined in that regard.
34. On 25 November 2004 the Odessa Regional Court of Appeal quashed the judgment of 17 September 2004(see paragraph 31 above) and remitted the case to the first-instance court for fresh examination.
35. On 28 July 2005 the Suvorivskyy Court acquitted the first applicant. It held that, as indicated by the case-file material, the search conducted oncompany Y.’s premises on 24 July 2001 had been unlawful (see paragraph 11 above). Furthermore, the police officers involved had been wearing plain clothes. Accordingly, the first applicant’s actions had been legitimate and had aimed to protect her property and reputation. The court also lifted the preventive measure in respect of the first applicant.
36. On 13 December 2005 the Odessa Regional Court of Appeal allowed an appeal by the prosecutor and quashed the judgment of 28 July 2005,remitting the case to the first-instance court for fresh examination.
37. On 18 January 2006 the Suvorivskyy Court started a retrial.
38. On 10 October 2008 the Suvorivskyy Court acquitted the first applicant once again and lifted her obligation not to leave town. The Suvorivskyy Court’s reasoning was similar to that in its decision of 28 July 2005. It further stated that the police officers had had no order to prevent anybody from leaving the company’s premises and that their violence towards the first applicant had been unlawful and arbitrary.
39. On the same day the Suvorivskyy Court also delivered a separate ruling stating that there had been a number of violations of the domestic legislation and the Convention in the criminal proceedings against the first applicant. The case file before the Court does not contain a copy of that ruling.
40. On 10 February 2009 the Odessa Regional Court of Appeal upheld the judgment of 10 October 2008 and the separate ruling.
41. On 19 January 2010 the Supreme Court upheld the lower courts’ decisions in the retrial proceedings.
D. Civil proceedings against the first applicant
42. On 4 September 2001 G., with whose car the first applicant’s car had collided on 24 July 2001 (see paragraph 10above), lodged a civil claim for damages against the first applicant.
43. On three occasions the appellate court remitted the case to the first‑instance court for fresh examination. In the fourth round of the proceedings, on 2 December 2008, the Suvorivskyy Court allowed G.’s claim in part,awarding her an amount corresponding to 420 euros (EUR) in respect of pecuniary damage and about EUR 50 in respect of non-pecuniary damage, to be paid by the first applicant.
44. On 24 February and 7 May 2009 the Odessa Regional Court of Appeal and the Supreme Court respectively upheld that judgment.
E. Commercial proceedings brought by the second applicant
45. After the seizure of the foodstuffs on 24 July 2001, the prosecuting authorities transferred them to a private company, D. (“company D.”), for storage purposes.
46. Following several unsuccessful complaints to the prosecuting authorities in respect of the search and seizure, on an unspecified date the second applicant brought a commercial claim against company D.,seeking the return of his property, as well as compensation for lost profit.
47. On 18 January 2002 the Odessa Regional Commercial Court allowed his claim in part and ordered company D., which did not dispute having received the foodstuffs, to return the second applicant’s property to him. However, as the bailiff was unable to find any such property at the premises of company D., on 14 February 2002 the same court changed the mode of enforcement in respect of its judgment and ordered the company to pay the second applicant 102,535Ukrainian hryvnias (UAH –about EUR 22,000 at the time).
48. On 15 April 2002 the Odessa Commercial Court of Appeal allowed an appeal by the defendant in part and deleted certain foodstuffs from a list referred to in the judgment of 18 January 2002. Apparently, the appellate court was not aware of the ruling of 14 February 2002.
49. On 29 May 2002 the Higher Commercial Court quashed the lower courts’ decisions and rejected the second applicant’s claim.
50. On 18 June 2002 the second applicant applied to the Higher Commercial Court for a review of its ruling of 29 May 2002 on the basis of newly discovered circumstances, namely the Prymorskyy Court’s decision of 24 May 2002 recognising that the criminal investigation against the company Y. officials had been unlawful (see paragraph 11 above). The Higher Commercial Court referred that application to the Odessa Commercial Court of Appeal for examination.
51. On 25 November 2002 the Odessa Commercial Court of Appeal quashed the Higher Commercial Court’s ruling of 29 May 2002. It held that the impugned seizure had taken place within the criminal proceedings, whose institution had been recognised as unlawful. Furthermore, the police had had no procedural documents authorising them to seize the goods in question. It had also been established that the withheld property had never been used as material evidence in criminal proceedings;nor had the assetsbeen frozen or transferred to company D. to secure a civil claim. Lastly, the court stated that company D. had had no legal basis to sell those goods.
52. On 3 April 2003 the bailiff’s service transferred to the second applicant UAH 4,404 which it had recovered from company D. in relation to the enforcement of the ruling of 14 February 2002.
53. On 23 March 2004 the bailiff’s service returned the writ of enforcement to the court, as it was impossible to implement it, owing to the absence of any funds or property at company D.
54. On 2 April 2002 the second applicant complained to the Odessa Regional Commercial Court of the bailiff’s inactivity as regards enforcing the ruling of 14 February 2002 (see paragraph 47above).
55. On 9 June 2003 the Odessa Regional Commercial Court found that there had indeed been an unlawful omission on the part of the bailiff’s service:the service had not taken any steps to ensure the enforcement.
F. Proceedings against the bailiff brought by the applicants
56. On 13 December 2004 the applicants brought a claim against the bailiff’s service, seeking compensation in respect of pecuniary and non-pecuniary damage.
57. On 26 December 2005 the Odessa Kyivskyy District Court ordered the bailiff’s service to pay the second applicant UAH 98,131in respect of pecuniary damage (the unenforced part of the ruling of 14 February 2002 – see paragraphs47 and 52 above). The court also ordered the defendant to pay both applicants UAH 30,000 (about EUR 5,000) jointly in respect of non-pecuniary damage, and rejected the first applicant’s claim for pecuniary damages.
58. On 21 June 2006 the Odessa Regional Court of Appeal quashed the Odessa Kyivskyy District Court’s decision of 26 December 2005. It rejected the first applicant’s claim and discontinued the proceedings brought by the second applicant, holding that his claim fell to be examined by commercial courts.
59. The applicants appealed on points of law to the Higher Administrative Court, which started the proceedings on 24 March 2008.
60. According to the applicants’ submissions of 7 September 2017, they did not receive any information from the Higher Administrative Court about further developments in those proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Applicable legislation
61. The relevant provisions of the Code of Criminal Procedure (1960), as in force at the material time, can be found in the Court’s judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).
62. The relevant provisions of the Law on the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts of 1 December 1994 (“the Compensation Act”), as worded at the material time,read as follows:
Section 1
“Under the provisions of this Law, a person is entitled to compensation for damage caused by:
1) unlawful conviction, [the] unlawful bringing of criminal charges …
In the cases referred to in subsection 1 of this section, the damage caused shall be compensated for fully regardless of the guilt of officials of the bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts.”
Section 2
“The right to compensation for damage in the amount and in the manner established by this Law shall arise in cases of:
acquittal by a court; …”
Section 3
“In the cases referred to in section 1 of this Act, the applicant shall be compensated for:
1) earnings and other income lost as a result of the unlawful actions; … and
5) non-pecuniary damage.”
B. Domestic case-law cited by the Government
63. The Government submitted to the Court the following domestic judicial decisions which they considered to be of relevance.
64. On 18 July 2006 the Krasnyy Lyman Town Court allowed a civil claim brought by an individual against the State Treasury and the local police department on account of his unlawful criminal prosecution. The court noted that during the criminal proceedings against the claimant, which had lasted almost four years and six months and had been dropped for want of evidence of his guilt, he had been under an obligation not to leave town. The court awarded him UAH 20,062, which was equivalent to about EUR 3,000, in respect of non-pecuniary damage. On 16 October 2006 the Donetsk Regional Court of Appeal upheld that judgment.
65. On 1 November 2007 the Telmanove Town Court allowed a similar claim for damages from an individual on account of criminal proceedings against him and an obligation not to leave town imposed on him in the context of those proceedings which had lasted a year and two months. Like in the case cited above, the criminal proceedings had been dropped at the pre-trial investigation stage for lack of evidence of the person’s guilt. The court’s award in respect of non-pecuniary damage was UAH 14,000 (about EUR 1,900 at the time).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT
66. The first applicant complained that there had been no effective domestic investigation into her allegation of ill-treatment by police officers on 24 July 2001. Although she relied on Article 13, the Court considers that this complaint falls to be examined under the procedural limb of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
67. The Government submitted that, according to the information provided by the Suvorivskyy prosecutor’s office, it had not registered any complaints from the first applicant in 2001 as regards her alleged ill‑treatment on 24 July 2001.The Government therefore asserted that the first applicant had not exhausted available domestic remedies.
68. The first applicant maintained that she had complained to various authorities on many occasions.
69. The Government further argued, in their additional observations, that the first applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. According to them, had the first applicant considered that she had no effective domestic remedies to exhaust, she should have lodged the complaint with the Court within six months of the date of the incident, 24 July 2001.
70. The first applicant did not comment on that issue.
71. Having regardto the case-file material (see, in particular, paragraphs 12-14 above), the Court accepts the first applicant’s argument that she complained about the incident to various authorities and can be said to have taken sufficient steps at domestic level prior to raising her complaint before this Court.
72. The Court therefore dismisses the Government’s objection based on the rule of exhaustion of domestic remedies.
73. As regards the Government’s objection based on the first applicant’s failure to respect the six-month time-limit, the Court observes that it held in the case of Kaverzin v. Ukraine (no. 23893/03, § 97, 15 May 2012) that the procedures of appeal to hierarchically superior prosecutors and to the courts were not capable of providing adequate redress in respect of complaints of both ill-treatment by the police and ineffective investigation. At the same time, the Court considered it reasonable for the applicant in that case to have waited for the completion of his trial prior to raising an ill-treatment complaint before the Court, where the domestic courts had examined that complaint on the merits in the course of his trial (ibid., § 99).
74. In the present case, the first applicant raised the allegation of her ill‑treatment during her trial. Even though that complaint was eventually not examined on merits, it was so closely linked to the charges against her that she can hardly be reproached for having tried that remedy before complaining to the Court. In any event, the first applicant did not wait for her trial to be completed (which was on 19 January 2010), and lodged her application on 1 December 2006, once it must have become clear to her that no effective domestic investigation into her ill-treatment allegation could be ensured within those proceedings. Accordingly, the Court does not see any valid reasons for considering this complaint belated, and also dismisses the Government’s objection based on those grounds.
75. The Court further notes that this complaint is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
76. The first applicantmaintained that there had been no assessment of the police officers’ violence against her, and that they had never been punished. She found it particularly unjust that, instead of ensuring an effective investigation into her arguable complaint of ill-treatment, the authorities had focused their efforts on her own criminal prosecution in respect of the same factual events.
77. The Government did not submit any observations on the merits of this complaint.
78. The Court emphasises that where an individual raises an arguable claim that he or she has been seriously ill-treated by police in breach of Article 3, that provision requires by implication that there should be an effective official investigation capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Labita v. Italy [GC], no. 26772/95, § 31, ECHR 2000‑IV). The minimum standards of effectiveness defined by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006‑III).
79. Turning to the present case, the Court notes that on the day after the incident the first applicant underwent a medical examination which documented numerous bruises on her face and body. Shortly thereafter she complained of her ill-treatment by the police to various authorities. Furthermore, the authorities had at their disposal a video recording of the events of 24 July 2001, from which it was clear that prior to the incident the first applicant had had no injuries, and that thereafter she had had a bruise on her face (see paragraphs 16 and 32 above).
80. The above considerations provided a sufficient basis for the authorities to consider the first applicant’s complaint “arguable” for the purposes of Article 3, thus requiring them to carry out an effective investigation.
81. It was not disputed that there had been an altercation between the first applicant and the police, and that both she and two officers had sustained some bodily injuries in the course of that altercation. However, it appears that only the officers were treated as victims of that incident, not the first applicant. Thus, the Court observes that on 20 December 2001 the Suvorivskyy prosecutor’s office refused to institute criminal proceedings against the police following the first applicant’s complaint of ill-treatment,on the grounds that the application of restraint measures in respect of the first applicant had been justified by her own illegal and aggressive behaviour (see paragraph 16 above). As regards the first applicant’s injuries which could not be explained by her forceful removal from the car and handcuffing, the prosecutor merely stated that she had concealed the circumstances in which she had sustained them.
82. There appears to be no indication in the above-mentioned prosecutor’s ruling that any investigative measures wereundertaken to establish the truth and bring those responsible to account. Although the police officers had been in plain clothes at the time of the incident and had had no arrest warrant for the first applicant,the legitimacy of their using force towards her was never questioned.
83. The Court further takes note of various procedural obstacles and omissions on the part of the authorities which prevented the first applicant from challenging the prosecutor’s refusal to initiate criminal proceedings before the courts (see paragraphs 17-24 above).
84. It is noteworthy that the authorities did eventually conclude that the first applicant had simply been protecting her property and reputation from unlawful actions of the police (see paragraphs35and 38above). However, notwithstanding that conclusion, the first applicant was an accused person in those proceedings. Moreover, it took the authorities nine and a half years to reach that conclusion, and it had no bearing as regards the liability of the police in respect of the first applicant’s arguable claim of ill-treatment.
85. In the light of the foregoing, the Court concludes that there was no effective domestic investigation into the first applicant’s complaint of ill‑treatment by the police.
86. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb in respect of the first applicant.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE FIRST APPLICANT
87. The first applicant complained that the length of the criminal proceedings against her had been incompatible with the “reasonable time” requirement enshrined in Article 6 § 1 of the Convention, the relevant part of 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 …”
A. Admissibility
88. The Government contended that the first applicant had not exhausted the domestic remedies available to her, as she had not claimed damages under the Compensation Act (see paragraph 62 above). They argued that such an action was effective both in theory and practice, and submitted copies of several decisions by which the domestic courts had awarded private persons compensation for the unlawful institution of criminal proceedings and imposition of obligations not to abscond (see paragraphs 63-65above).
89. The first applicantmaintained that she had not had any effective domestic remedy to exhaust.
90. The Court reiterates that the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether an applicant can raise this complaint before domestic courts by claiming specific redress; in other words, whether a remedy exists that could answer his or her complaints by providing direct and speedy redress (see Loshenko v. Ukraine, no. 11447/04, § 28, 11 December 2008). The Court has also held that a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudła v. Poland [GC], no. 30210/96, §§ 157-59, ECHR 2000‑XI).
91. Applying the above principles to the instant case, the Court observes that the domestic compensation procedure referred to by the Government could not provide for the acceleration of the pending judicial proceedings. Nor did it specifically provide for compensation for non‑pecuniary damage caused by the unreasonable length of proceedings. Lastly, the domestic decisions submitted by the Government did not concern explicit complaints about the length of proceedings (see and compare with Nakonechnyy v. Ukraine [Committee], no.17262/07, § 18, 26 January 2012).
92. The Court further refers to its earlier findings in other Ukrainian cases about the lack of an effective and accessible remedy under domestic law for complaints in respect of the length of criminal proceedings (seeMerit v. Ukraine, no. 66561/01, §§ 78-79, 30 March 2004).
93. In these circumstances, the Court considers that it has not been sufficientlyestablished that recourse to the remedy suggested by the Government would have been capable of affording redress to the first applicant in relation to her complaint concerning the length of the proceedings in her case. The Court therefore rejects the Government’s objection.
94. The Court further finds that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
95. The first applicant argued that the length of the proceedings, which had been marked by two remittals for retrial, had been unreasonable. She further observed that, although she had eventually been acquitted, the authorities had kept her in a state of uncertainty as to her fate for over eight years, and for almost that entire period she had been under an obligation not to leave town.
96. The Government contended that the length of the criminal proceedings against the first applicant had been reasonable. They observed that several adjournments in those proceedings had been attributable to the first applicant’s pregnancy.
97. According to the well-established principles of the Court’s case-law, 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, and 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).
98. The Court notes that in the leading case of Merit, (cited above, § 76), it found a violation of Article 6 § 1 of the Convention on account of the unreasonable length of criminal proceedings. There seem to be no reasons for the Court to reach a different conclusion in the circumstances of the present case. Thus, the major delay in the proceedings – of over seven years – was caused by the remittal of the case for retrial on two occasions (see, in particular, paragraphs 31 and 34-38 above).
99. It follows that there has been a violation of Article 6 § 1 of the Convention in respect of the first applicant, on account of the unreasonable length of the criminal proceedings against her.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTIONIN RESPECT OF THE SECOND APPLICANT
100. The second applicant complainedof a violation of his rights under Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Admissibility
101. The Government submitted that they were not able to formulate their position on the admissibility of this part of the application, given that all the official records of relevance had been destroyed after the expiry of the statutory period for their storage.
102. The second applicant maintained that the interference with his property rights was sufficiently established by the documents already available in the case file.
103. The Court considers that the second applicant’s complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.
104. The Court further notes that this part of the application is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
105. The second applicant alleged that the State was responsible for a series of unlawful acts and omissions violating his property rights. In that connection, he referred to the seizure of the foodstuffs belonging to him on 24 July 2001, their transfer to a private company, the non-enforcement of the judgment in his favour against that company, owing to unlawful omissions on the part of the bailiff’s service, and the failure of the domestic courts to adjudicate on his claim for damages against the bailiff’s service.
106. The Government did not submit any observations on the merits of this complaint, relying on the fact that they had no documents of relevance in their possession (see also paragraph 101 above).
107. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law”, and the second paragraph recognises that States have the right to control the use of property by enforcing “laws” (see Broniowski v. Poland [GC], no. 31443/96, § 147, ECHR 2004‑V).
108. Turning to the present case, the Court notes that it was sufficiently established by the domestic courts that the seizure of the second applicant’s property by the police and its transfer to a private company had been unlawful (see paragraph 51 above). Likewise, it was acknowledged by the domestic courts that the second applicant’s inability to retrieve his goods or recover their monetary value was attributable to the State authorities, namely the bailiff’s service (see, in particular, paragraph 55 above).
109. The Court is mindful of the absence of any documents in the case file as regards the outcome of the proceedings for damages brought by the second applicant against the bailiff’s service. According to the second applicant, on 7 September 2017 – the date of his submissions to the Court – he had not heard from the Higher Administrative Court since 24 March 2008 (see paragraph 60 above). The Court also finds it regrettable that the Government did not succeed in establishing whether there had been any further developments in those proceedings.
110. However, regardless of the eventual outcome of the proceedings in question, the Court takes note of the strenuous efforts made by the second applicant before various authorities for about six and a half years (calculated with reference to the last known event, namely the opening of the proceedings before the Higher Administrative Court on 24 March 2008) and possibly longer. Moreover, as rightly pointed out by the second applicant, the State’s interference with his property rights was not confined to the unlawful seizure of his goods, but also the arbitrary transfer of the goods to a private company, as well as the failure of the bailiff’s service to take any measures to recover the value of his property from that company.
111. The above considerations are sufficient for the Court to find a violation of Article 1 of Protocol No. 1 in respect of the second applicant.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION AND ITS PROTOCOLS
112. The first applicant also complained under Article 6 § 1 thatthe length of the civil proceedings against her had been unreasonable. Furthermore, she complained under Article 2 of Protocol No. 4 about the length of the obligation not to leave town which had been imposed on her as a preventive measure in the criminal proceedings against her. Lastly, she complained that the alleged interference with her husband’s property rights had breached her own rights under Article 1 of Protocol No. 1, given that they were a married couple. The Court communicated those complaints to the respondent Government.
113. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 3 and Article 6 § 1 of the Convention in relation to the first applicant, as well as Article 1 of Protocol No. 1 in relation to the second applicant (see paragraphs 86, 99 and 111 above), the Court considers that it has examined the main legal questions raisedin the present application, and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaints (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
114. The first applicant additionally complained under Article 6 § 1 of the Convention of the unfairness of the criminal and civil proceedings against her. Furthermore, she complained under Article 5 of Protocol No. 7 that the courts’ rejection of her claims in the proceedings initiated by her husband had been in breach of the principle of equality of spouses. The second applicant additionally complained that the obligation not to leave town which had been imposed on his wife had negatively affected his freedom of movement, and had thus breached his rights under Article 2 of Protocol No. 4.
115. 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 the above issues do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
116. 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
117. The first applicant claimed 101,105 euros (EUR) in respect of non‑pecuniary damage.The second applicant claimed EUR 80,284 in respect of pecuniary damage. This amount comprised: EUR 20,923 (equivalent to 98,131 Ukrainian hryvnias (UAH) in 2002 – see paragraph 57 above), and EUR 59,361 (estimated lost profit). The second applicant also claimed EUR 60,658 in respect of non-pecuniary damage.
118. The Government contested the above claims as exorbitant and unsubstantiated.
119. In the absence of any documents regarding the outcome of the proceedings for damages brought by the second applicant against the bailiff’s service (see paragraphs 59-60 above), the Court cannot discern any causal link between the violation found and the pecuniary damage alleged.
120. At the same time, the Court considers that the applicants must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, in respect of non-pecuniary damage, it awardsthe first applicant EUR 10,000 and the second applicant EUR 5,000.
B. Costs and expenses
121. The applicantsalso claimed costs and expenses incurred before the domestic courts, without specifying theamount claimed. Furthermore, they claimed an award equal to 3% of the above just satisfaction claims in respect of their legal representation in the proceedings before the Court. In support of this claim, they submitted a copy of a legal services agreement concluded with Mr Khattak on 5 October 2010, in accordance with which theyhad undertaken to pay him3% of the just satisfaction awarded to them by the Court in this case.
122. The Government contested those claims as unsubstantiated.
123. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999‑V).
124. The Court notes that the applicants concluded an agreement with their lawyer concerning his fees which is comparable to a contingency fee agreement. Such an agreement, whereby a lawyer’s client agrees to pay the lawyer, in fees, a certain percentage of the sum, if any, awarded to the litigant by the court – an agreement giving rise to obligations solely between lawyer and client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs have actually been incurred, but also to whether they have been reasonably incurred (seeIatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000‑XI).
125. In the light of the foregoing principles, and having regard to the case-file material, the Court considers it reasonable to award EUR 300 to the applicants jointly in respect of their legal representation before the Court, plus any tax that may be chargeable to them on that amount.
C. Default interest
126. The Court considers it appropriate that the default interest rate 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 first applicant’s complaint under Article 3 of the Convention of the lack of an effective domestic investigation into her allegation of ill-treatment by the police, her complaint under Article 6 § 1 of the Convention about the length of the criminal proceedings against her, and the second applicant’s complaint under Article 1 of Protocol No. 1 of the violation of his property rights admissible;
2. Holds that it is not necessary to examine the admissibility and merits of the first applicant’s complaints under: Article 6 § 1 about the length of the civil proceedings against her; Article 2 of Protocol No. 4 about the length of the obligation not to leave town; and Article 1 of Protocol No. 1 in respect of the police seizure of her husband’s property;
3. Declares the remainder of the application inadmissible;
4. Holdsthat there has been a violation of Article 3 of the Convention under its procedural limb in respect of the first applicant;
5. Holdsthat there has been a violation of Article 6 § 1 of the Convention in respect of the first applicant, on account of the lengthy criminal proceedings against her;
6. Holdsthat there has been a violation of Article 1 of Protocol No. 1 in respect of the second applicant;
7. Holds
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, to the first applicant, Ms Irina Valeryevna Gorkovlyuk, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to the second applicant, Mr Stanislav Yulyevich Kaganovskiy, in respect of non-pecuniary damage;
(iii) EUR 300 (three hundred euros) jointly, plus any tax that may be chargeable to the applicants, in respect of legal costs before the Court;
(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;
8. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 4 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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1. Rectified on 19 November 2018: the date was “9 January 2001”.
2. Rectified on 19 November 2018: the date was “3 January 2001”.
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