CASE OF YURTAYEV v. UKRAINE
Violation of Art. 6-1 (length);Remainder inadmissible;Non-pecuniary damage - financial award
4. The applicant was born in 1961 and is currently serving a prison sentence at Penitentiary No. 8 in Makeyevka, the Donetsk region. 5. On 27 February 1998 the applicant, along with eight others, was arrested on suspicion of hooliganism and extortion. 6. On 2 March 1998 the applicant was charged with the above crimes and detained on remand. 7. By June 1998 the pre-trial investigation was completed and the applicant was given access to the case file. On 26 June 1998 he finished studying it. 8. On 17 July 1998 the investigator drafted the bill of indictment. On 3 August 1998, it was approved by the district prosecutor and referred to the Tsentralno-Gorodskoy District Court of Gorlovka (hereafter “the District Court”) for examination on the merits. The prosecution’s case was that the applicant and eight other suspects were members of a gang, involved in several counts of extortion and hooliganism (Articles 144 and 206 of the 1960 Criminal Code, respectively). 9. Between 2 September 1998 and 6 October 1998 the District Court held eight hearings. On the latter date it ordered an additional forensic assessment of the severity of the bodily harm suffered by K. (one of four victims). 10. On 3 December 1998 the trial judge resumed the hearing and, until 16 December 1998, conducted three more sittings. 11. On 30 December 1998 the applicant was acquitted of extortion but sentenced to two years’ imprisonment for inflicting bodily harm (Article 102 of the Code). The prosecution appealed, challenging the court’s reclassification of the imputed offences which led to the excessive mildness of the sentence. On 23 February 1999 the Donetsk Regional Court upheld the conviction. 12. On 24 February 1999 the Presidium of the Donetsk Regional Court, following the protest (an extraordinary appeal) of the Deputy President of the Donetsk Regional Court (hereafter “the Regional Court”), quashed these decisions and remitted the case for a fresh investigation. 13. By April 1999 the additional investigation was finalised and the applicant was given access to the case file. On 26 May 1999 the investigator filed a bill of indictment against the applicant and his co-accused, charging them with extortion. 14. On 22 June 1999 the new trial commenced before the District Court, sitting with another judge, and on 22 July 1999, following ten hearings, the District Court convicted the applicant and his co-defendants of inflicting bodily harm and unlawfully depriving another of liberty (Article 123 of the Code). The court further amnestied and released six of the convicts; however, the applicant and two others were left in custody. The prosecution challenged this decision relying on the same grounds as in its previous appeal (paragraph 11 above). 15. On 19 October 1999 the Regional Court returned the case file to the District Court on account of its failure to provide the defendants with an opportunity to study the court records, as required by the Code of Criminal Procedure. 16. On 22 November 1999 the District Court, having complied with that requirement, resubmitted the case to the Regional Court. On 30 November 1999 the latter quashed the decision of 22 June 1999 and remitted the case to the Kuybyshevsky District Court of Gorlovka (hereafter “the Kuybyshevsky Court”). 17. On 4 January 2000 the Kuybyshevsky Court recommenced the trial and scheduled the first hearing for 11 January 2000. However, this sitting did not take place due to the absence of the defendants who had been released in June 1999. The judge adjourned the trial pending the establishment of their whereabouts. 18. On 20 March 2000 the proceedings concerning the defaulting defendants were disjoined from the applicant’s case. The court fixed the next hearing for 3 April 2000, which subsequently was adjourned until 17 April 2000 due to the victim’s failure to appear. 19. Between 17 April 2000 and 15 June 2000, the Kuybyshevsky Court held twelve hearings. On 22 June 2000, at an in camera hearing, the court sentenced the applicant to nine years’ imprisonment following his conviction for extortion. The period of detention on remand was included in the sentence. In his appeal the applicant’s lawyer challenged the court’s assessment of facts and law; however, he did not raise the issue of the non-public examination of the case. 20. On 20 April 2001 the Regional Court ruled that the first instance court had failed to comply with certain procedural requirements regarding the defendants’ right to be duly notified about the conduct of the appeal proceedings. The court therefore decided to return the case file to the Kuybyshevsky Court for this purpose. 21. On an unspecified date, the case was referred anew to the Regional Court. 22. On 1 June 2001 the Regional Court upheld the decision of 22 June 2000 in substance but mitigated the prison regime applicable to the applicant.