CASE OF DESHKO AND OTHERS v. UKRAINE (European Court of Human Rights) Applications nos. 72209/13 and 2 others – see appended table

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


FIFTH SECTION
CASE OF DESHKO AND OTHERS v. UKRAINE
(Applications nos. 72209/13 and 2 others – see appended table)
JUDGMENT
STRASBOURG
14 October 2021

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

In the case of Deshko 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 23 September 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 their pre-trial detention. Some applicants 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 5 § 3 OF THE CONVENTION

6. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which reads as follows:

Article 5 § 3

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references).

8. In the leading cases of Kharchenko v. Ukraine (no. 40107/02, 10 February 2011) and Ignatov v. Ukraine (no. 40583/15, 15 December 2016), 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 persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive.

10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. In application no. 63731/19, the applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Merit v. Ukraine (no. 66561/01, 30 March 2004).

IV. REMAINING COMPLAINTS

12. In application no. 72209/13, the applicant also raised other complaints under various Articles of the Convention.

13. The Court has examined these complaints and 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, they 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. 72209/13 must be rejected in accordance with Article 35 § 4 of the Convention.

V. 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, Ignatov, cited above, § 57), the Court considers it reasonable to award the sums indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicant in application no. 72209/13.

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 pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of application no. 72209/13 inadmissible;

3. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;

4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

5. 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.

6. Dismisses the remainder of the applicant’s claims for just satisfaction in application no. 72209/13.

Done in English, and notified in writing on 14 October 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 5 § 3 of the Convention
(excessive length of pre-trial detention)

No. Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location Period of detention Length of detention Specific defects Other complaints under well‑established case-law Amount awarded for pecuniary and non-pecuniary damage per applicant

(in euros)[1]

Amount awarded for costs and expenses per application

(in euros)[2]

1. 72209/13

11/11/2013

Yuriy Ivanovych DESHKO

1962

Klymenko Olena Mykolayivna

Kyiv

22/05/2013 to

21/05/2014

1 year fragility of the reasons employed by the courts;

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;

failure to examine the possibility of applying other measures of restraint

600 250
2. 63731/19

03/12/2019

Oleg Yevgenovych LYMAR

1982

Gayvoronska Viktoriya Valentynivna

Kharkiv

21/05/2010

pending

More than 11 years and 3 months and 13 days As the case progressed, fragility of the reasons employed by the courts;

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;

failure to examine the possibility of applying other measures of restraint;

failure to conduct the proceedings with due diligence during the period of detention

Art. 6 (1) – excessive length of criminal proceedings – The criminal proceedings against the applicant commenced on 21/05/2010 and are still pending. One level of jurisdiction. 6,200 250
3. 46599/20

08/10/2020

Valeriy Mykolayovych UDUD

1971

Shepitko Grygoriy Ivanovych

Odesa

08/08/2017 to

08/07/2020

2 years and 11 months and 1 day fragility of the reasons employed by the courts;

failure to examine the possibility of applying other measures of restraint

1,800 250

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

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

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