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Благотворительный фонд "Ющенко Крым"

Продолжение

68.The Government pointed out that the criminal case against the first applicant was quite complicated and therefore required time for proper consideration. In particular, two forensic examinations were held and five witnesses questioned. The first applicant was suspected of committing two crimes and he frequently changed his statements, which required additional investigation. Moreover, the first applicant lodged more than fifty complaints seeking different information and additional documents, requesting that hearings be postponed, proceedings terminated, criminal proceedings initiated against witnesses and judges, and so on.

 

69.The Government drew the Court's attention to the behaviour of the first applicant during the proceedings in his case. In particular, on 1 August 2002 the parties started fighting in court and the hearing had to be postponed. On one occasion the first applicant refused to participate in the hearing and persistently used offensive language to the judge, the witnesses and the opposite party. Consequently, on 5 December 2003 the court forbade the first applicant to be present in some court hearings. The applicant also twice damaged the documents in his case file.

 

70.The Government believed that in the above circumstances the length of proceedings in the criminal case for fraud against the first applicant could not be considered unreasonable.

 

71.The Court notes that the proceedings in question lasted for four years, three months and twenty-nine days (from 3 March 2000 until 1 July 2004) and included an investigation stage and three court instances. The Court does not accept the Government's submissions that the first applicant's case was complicated, but given the applicant's behaviour and the lack of significant periods of inactivity caused by the State authorities, the Court finds that there is no breach of Article 6 § 1 of the Convention in respect of the length of fraud proceedings against the first applicant.

b) Libel

72.The first applicant reiterated his previous submissions and stated that the proceedings in his case had lasted too long.

 

73.The Government considered that the proceedings in the present case had been protracted by the lodging of numerous complaints and requests by the first applicant. They noted that the first instance court has had to deal with more than twenty interrelated cases between the first applicant and L. since 1998 more than twenty cases between the first applicant and L. have been considered by the first-instance court, and this history also complicated the consideration of the libel case.

 

74.The Court notes that the proceedings in question were instituted on 21 April 1999 and allegedly discontinued after 3 October 2003. They lasted for at least four years. The time between 6 January and 16 June 2000 should not be taken into consideration since the proceedings were not pending during this period. Therefore, the proceedings had already lasted for one

year and eleven months when the offence in question was decriminalised in September 2001. It is true that from that date, less must have been at stake for the applicant than previously, as he would be acquitted if the new law applied to the applicant's case, and if it did not, the legislator had given a clear sign that libel was not regarded as very serious. The proceedings, however, continued for at least two more years and one month, and it is unclear when exactly did they end or what was under consideration. Indeed, the domestic courts on two occasions remitted the case for additional investigation, which meant the applicant's further involvement in different investigatory activities, which could have brought even more uncertainty for the applicant as to whether the decriminalisation provision would apply to him. Given that the case has never been considered on the merits, 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.

c) Civil proceedings

75.The first applicant reiterated his submissions and stated that the proceedings in his case had lasted too long.

 

76.The Government submitted that the first applicant's claim of 12January 2001 had been rejected on 17 June 2002 for the first applicant's failure to comply with procedural formalities. On 26 June 2002 he submitted another claim and the proceedings were terminated on 3 July 2006. The Government believed that during the consideration of the first applicant's claim there had been no periods of inactivity which could be attributable to the State.

 

77.The Court notes that there is no evidence that the applicant's claim was rejected on 17 June 2002. The copy of the decision of 17 June 2002, submitted by the first applicant, concerns consideration of a similar claim lodged by the second applicant. Moreover, the claim of 26 June 2002 referred to by the Government concerns the first applicant's civil case against Judge L., therefore, in the absence of any other information, the Court considers that the proceedings in question were initiated in January 2001 and ended on 15 September 2006 (see paragraphs 48-51)

 

78.The overall length of proceedings is, therefore, around five years and eight months at three levels of jurisdiction. Although that length could still be considered reasonable, the Court notes that there were two significant periods of inactivity. First, the applicant's claim and/or case file were lost and the court decided on the merits of the case only two years and nine months later. Secondly, the applicant's appeal in cassation was pending for two years and nearly two months in the Supreme Court of Ukraine (from 23 January 2004 to 15 March 2006, see paragraph 51). In such circumstances the Court finds that the length of proceedings was excessive and failed to meet the "reasonable time" requirement.

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

III. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION IN RESPECT TO THE THIRD APPLICANT

79.The third applicant complained under Article 6 § 1 of the Convention of an unfair trial and about the length of proceedings in the criminal case against him. In particular, he complained that he had not been presumed innocent according to Article 6 § 2 as during consideration of the criminal case against the first applicant, that court in its judgment had referred to the third applicant as an accomplice although the third applicant had participated in the consideration of the case as a witness.

80.The invoked Article, in so far as relevant, provides as follows:

Article 6

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

A.   Admissibility

81.   The Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
they are not inadmissible on any other grounds. They must therefore be
declared admissible.

B.   Merits

1. Length of proceedings

82.The third applicant reiterated that the length of the criminal proceedings in his case had not been reasonable. He submitted that he had a permanent place of residence and was employed, therefore there had been no grounds to put him on the wanted list and to stay the proceedings.

 

83.The Government stated that the third applicant had protracted the pre-trial investigation and court examination of his criminal case by lodging numerous complaints and requests. In particular, he had challenged the judge in his case on sixteen occasions and, furthermore, requested that the hearings be postponed, the proceedings be terminated, criminal proceedings against the witnesses and judges be initiated, and so on. The Government

further indicated that the criminal proceedings in the third applicant's case had been stayed for three years and seven months because his whereabouts were unknown. Moreover, on fifteen occasions the court hearings in the third applicant's case were postponed because the witnesses in the case had failed to appear. In conclusion the Government stated that, given the complexity of the case and the third applicant's behaviour, the length of proceedings in the criminal case against him had been reasonable.

 

84.The Court notes that the criminal proceedings against the third applicant lasted for around six years and two months (from 6 June 2000 to 12 August 2006) and included a pre-trial investigation and three court instances.

 

85.The Court further notes that these proceedings were stayed for four years (from 6 June 2000 until 1 June 2004). There is no evidence in support of the statement that the third applicant was in hiding during all or part of that period or that any search was carried out. In particular, the third applicant took part in a court hearing in the criminal proceedings against his father as a witness (see paragraph 35).

86.In such circumstances, the Court finds that the length of proceedings in the present case does not comply with the "reasonable time" requirement and there is accordingly a violation of Article 6 § 1 of the Convention.

2. Presumption of innocence

87.The third applicant reiterated his previous submissions.

 

88.The Government stated that during the investigation of the criminal case against the first applicant it had been revealed that he had been assisted by another person. Since the witnesses recognised the third applicant as this person, on 6 June 2000 the third applicant was charged with fraud. However, since the third applicant was missing, the criminal proceedings against him were stayed and on 21 January 2004 the court considered only the criminal case against the first applicant. The Government insisted that the court's findings were limited only to the fact that the first applicant was assisted by his son, without determining of the latter's guilt. In the Government's view the court had referred to the witnesses' statements about the third applicant assisting his father in committing "unlawful actions", but these findings could not breach the principle of the presumption of innocence in respect to the third applicant.

 

89.The Court reiterates that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair trial. The presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as  guilty (see, among other authorities, Deweer v.  Belgium,