CASE OF GERASHCHENKO AND OTHERS v. UKRAINE (European Court of Human Rights) Applications nos. 9219/20 and 3 others – see appended list

FIFTH SECTION
CASE OF GERASHCHENKO AND OTHERS v. UKRAINE
(Applications nos. 9219/20 and 3 others – see appended list)
JUDGMENT
STRASBOURG
16 September 2021

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

In the case of Gerashchenko and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Stéphanie Mourou-Vikström, President,
Jovan Ilievski,
Mattias Guyomar, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 26 August 2021,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The Ukrainian Government (“the Government”) were given notice of the applications.

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. In application no. 9219/20, the applicant also raised other complaints under the provisions of the Convention.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION

6. The applicants complained principally that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:

Article 6 § 1

“In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal…”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

7. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).

8. In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004) the Court already found a violation in respect of issues similar to those in the present case.

9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of justifying the overall length of the proceedings at the national level. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.

11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.

III. REMAINING COMPLAINTS

12. In application no. 9219/20, the applicant also raised other complaints under various Articles of the Convention.

13. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of application no. 9219/20 must be rejected in accordance with Article 35 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. 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.”

15. Regard being had to the documents in its possession and to its case‑law (see, in particular, Bevz v. Ukraine, no. 7307/05, § 52, 18 June 2009), the Court finds it reasonable to award the sums indicated in the appended table.

16. 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. Decides to join the applications;

2. Declares the complaints concerning the excessive length of criminal proceedings and the lack of any effective remedy in domestic law admissible and the remainder of application no. 9219/20 inadmissible;

3. Holds that these complaints disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of criminal proceedings and lack of an effective remedy in this respect;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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.

Done in English, and notified in writing on 16 September 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                    Stéphanie Mourou-Vikström
Acting Deputy Registrar                         President

____________

APPENDIX

List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention

(excessive length of criminal proceedings and lack of any effective remedy in domestic law)

No. Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location Start of proceedings End of proceedings Total length

Levels of jurisdiction

Amount awarded for pecuniary and

non-pecuniary damage and costs and expenses per applicant

(in euros)[1]

1. 9219/20

04/02/2020

Sergiy Leonidovych GERASHCHENKO

1986

Rybiy Sergiy Mykolayovych

Dnipro

Kulbach

Sergiy

Oleksandrovych

Limoges

14/08/2014 pending More than 6 years and 10 months and 17 days

2 levels of jurisdiction

1,800
2. 45311/20

24/09/2020

Valeriy Mykolayovych GIBALENKO

1969 

Volodymyr Volodymyrovych SHAPAKIN

1963

Fedosin Artem Viktorovych

Kyiv

06/07/2015 pending More than 5 years and 11 months and 26 days

1 level of jurisdiction

1,800
3. 52708/20

14/11/2020

Andriy Yakovych MOGYLEVETS

1966

22/02/2011 26/05/2020 9 years and 3 months and 5 days

3 levels of jurisdiction

1,800
4. 53152/20

27/11/2020

Oleg Gennadiyovych RUBAN

1974

Kulbach Sergiy Oleksandrovych

Limoges

16/12/2016 pending More than 4 years and 6 months and 16 days

1 level of jurisdiction

1,500

[1] Plus any tax that may be chargeable to the applicants.

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