{"id":18087,"date":"2022-02-24T10:38:56","date_gmt":"2022-02-24T10:38:56","guid":{"rendered":"https:\/\/laweuro.com\/?p=18087"},"modified":"2022-02-24T10:38:56","modified_gmt":"2022-02-24T10:38:56","slug":"case-of-kosinskyy-and-others-v-ukraine-european-court-of-human-rights-64471-13-and-6-others","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=18087","title":{"rendered":"CASE OF KOSINSKYY AND OTHERS v. UKRAINE (European Court of Human Rights) 64471\/13 and 6 others"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF KOSINSKYY AND OTHERS v. UKRAINE<\/strong>
\n(Applications nos. 64471\/13 and 6 others \u2013 see appended list)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n24 February 2022<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Kosinskyy and Others v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n

L\u0259tif H\u00fcseynov, President,
\nLado Chanturia,
\nArnfinn B\u00e5rdsen, judges,
\nand Viktoriya Maradudina, Acting Deputy Section Registrar,<\/p>\n

Having deliberated in private on 3 February 2022,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1. The case originated in applications against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on the various dates indicated in the appended table.<\/p>\n

2. The Ukrainian Government (\u201cthe Government\u201d) were given notice of the applications.<\/p>\n

THE FACTS<\/strong><\/p>\n

3. The list of applicants and the relevant details of the applications are set out in the appended table.<\/p>\n

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.<\/p>\n

THE LAW<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/p>\n

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 5\u00a0\u00a7\u00a03 OF THE CONVENTION<\/p>\n

6. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article\u00a05\u00a0\u00a7\u00a03 of the Convention, which reads as follows:<\/p>\n

Article\u00a05\u00a0\u00a7\u00a03<\/p>\n

\u201c3. Everyone arrested or detained in accordance with the provisions of paragraph\u00a01\u00a0(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.\u201d<\/p>\n

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\u00a05 \u00a7\u00a03 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kud\u0142a v.\u00a0Poland [GC], no.\u00a030210\/96, \u00a7 110, ECHR 2000\u2011XI, and McKay v. the United Kingdom [GC], no. 543\/03, \u00a7\u00a7 41-44, ECHR 2006\u2011X, with further references).<\/p>\n

8. In the leading cases of Kharchenko v. Ukraine (no. 40107\/02, 10\u00a0February 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.<\/p>\n

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\u2019 pre-trial detention was excessive.<\/p>\n

10. These complaints are therefore admissible and disclose a breach of Article\u00a05 \u00a7\u00a03 of the Convention.<\/p>\n

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/p>\n

11. Some applicants 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\u00a035\u00a0\u00a7\u00a03\u00a0(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 Svershov v. Ukraine (no. 35231\/02, \u00a7\u00a7 70-72, 27 November 2008), Kharchenko (cited above, \u00a7\u00a7 84-87); Tymoshenko v. Ukraine (no.\u00a049872\/11, \u00a7\u00a7 286-87, 30 April 2013), Kotiy v.\u00a0Ukraine (no.\u00a028718\/09, \u00a7\u00a055, 5\u00a0March 2015), Korban v. Ukraine (no.\u00a026744\/16, \u00a7\u00a7 132-34, 4 July 2019) and Nechay v. Ukraine (no. 15360\/10, \u00a7\u00a7\u00a067-79, 1 July 2021).<\/p>\n

IV. REMAINING COMPLAINTS<\/p>\n

12. In applications nos.\u00a064471\/13, 25907\/16 and 29262\/19 the applicants raised additional complaints under various Articles of the Convention.<\/p>\n

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\u00a034 and\u00a035 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.<\/p>\n

It follows that this part of the three applications must be rejected in accordance with Article\u00a035\u00a0\u00a7\u00a04 of the Convention.<\/p>\n

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

14. Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

15. Regard being had to the documents in its possession and to its case\u2011law (see, in particular, Ignatov, cited above, \u00a7 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 applicants in applications nos. 64471\/13 and 25907\/16.<\/p>\n

16. The Court further 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

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 nos.\u00a064471\/13, 25907\/16 and 29262\/19 inadmissible;<\/p>\n

3. Holds that these complaints disclose a breach of Article\u00a05\u00a0\u00a7\u00a03 of the Convention concerning the excessive length of pre-trial detention;<\/p>\n

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);<\/p>\n

5. Holds<\/p>\n

(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;<\/p>\n

(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;<\/p>\n

6. Dismisses the remainder of the applicants\u2019 claims for just satisfaction in applications nos. 64471\/13 and 25907\/16.<\/p>\n

Done in English, and notified in writing on 24 February 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Viktoriya Maradudina\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 L\u0259tif H\u00fcseynov
\nActing Deputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

___________<\/p>\n

APPENDIX<\/strong><\/p>\n

List of applications raising complaints under Article 5 \u00a7 3 of the Convention<\/p>\n

(excessive length of pre-trial detention)<\/p>\n

 <\/p>\n\n\n\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong><\/p>\n

Date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

Year of birth<\/strong><\/td>\n

Representative\u2019s name and location<\/strong><\/td>\nPeriod of detention<\/strong><\/td>\nLength of detention<\/strong><\/td>\nSpecific defects<\/strong><\/td>\nOther complaints under well-established case-law<\/strong><\/td>\nAmount awarded for non-pecuniary damage per applicant<\/strong><\/p>\n

(in euros)[i]<\/a><\/strong><\/td>\n

Amount awarded for costs and expenses per application<\/strong><\/p>\n

(in euros)[ii]<\/a><\/strong><\/td>\n<\/tr>\n<\/thead>\n

1.<\/td>\n64471\/13<\/p>\n

27\/09\/2013<\/td>\n

Mykola Sergiyovych KOSINSKYY<\/strong><\/p>\n

1984<\/td>\n

Ponomaryov Sergiy Sergiyovych<\/p>\n

Belogorsk<\/td>\n

18\/06\/2012 to<\/p>\n

18\/08\/2014<\/td>\n

2 years and 2\u00a0months and 1 day<\/p>\n

 <\/td>\n

fragility of the reasons employed by the courts;<\/p>\n

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;<\/p>\n

failure to assess the applicant\u2019s personal situation reducing the risks of re-offending, colluding or absconding<\/td>\n

Art. 3 – use of metal cages and\/or other security arrangements in courtrooms – handcuffing and metal cage during the hearings (see Svinarenko and Slyadnev v.\u00a0Russia<\/em> [GC], nos. 32541\/08 and 43441\/08, \u00a7 138, 17\u00a0July 2014; Korban v.\u00a0Ukraine<\/em>, no.\u00a026744\/16, \u00a7\u00a7\u00a0132\u201134, 4\u00a0July 2019),<\/p>\n

Art. 5 (4) – excessive length of judicial review of detention – the requests, lodged on 16\/04\/2014 and 26\/05\/2014, were examined on 12\/05\/2014 and 23\/06\/2014, respectively (see Kharchenko v.\u00a0Ukraine<\/em>, no.\u00a040107\/02, \u00a7 86, 10\u00a0February 2011),<\/p>\n

Art. 5 (5) – lack of, or inadequate compensation, for the violation of Article\u00a05 \u00a7\u00a03 of the Convention – Absence of an effective and enforceable right to compensation for alleged violation of Article 5 \u00a7 3, as required by Article 5 \u00a7\u00a05 (see Tymoshenko v.\u00a0Ukraine<\/em>, no.\u00a049872\/11, \u00a7\u00a7 286-287, 30 April 2013; Kotiy v.\u00a0Ukraine<\/em>, no.\u00a028718\/09, \u00a7 55, 5\u00a0March 2015)<\/td>\n

2,350<\/td>\n<\/td>\n<\/tr>\n
2.<\/td>\n25907\/16<\/p>\n

10\/04\/2016<\/td>\n

Oleg Petrovych PETROV<\/strong><\/p>\n

1975<\/td>\n

Ignatov Oleksandr Anatoliyovych<\/p>\n

Dnipro<\/td>\n

11\/08\/2014 to<\/p>\n

02\/03\/2016<\/p>\n

06\/07\/2016 to<\/p>\n

11\/05\/2018<\/td>\n

1 year and 6\u00a0months and 21\u00a0days<\/p>\n

1 year and 10\u00a0months and 6\u00a0days<\/p>\n

 <\/td>\n

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice<\/td>\nArt. 5 (5) – lack of, or inadequate compensation, for the violation of Article 5 \u00a7\u00a03 of the Convention – Absence of an effective and enforceable right to compensation for alleged violation of Article 5 \u00a7 3, as required by Article 5 \u00a7\u00a05 (see Tymoshenko v.\u00a0Ukraine<\/em>, no. 49872\/11, \u00a7\u00a7 286-287, 30 April 2013; Kotiy v.\u00a0Ukraine<\/em>, no.\u00a028718\/09, \u00a7 55, 5\u00a0March 2015)<\/td>\n2,700<\/td>\n<\/td>\n<\/tr>\n
3.<\/td>\n49805\/16<\/p>\n

06\/08\/2016<\/td>\n

Viktor Borysovych ZAMFERESKO<\/strong><\/p>\n

1982<\/td>\n

 <\/p>\n

 <\/td>\n

14\/11\/2014 to<\/p>\n

20\/04\/2016<\/td>\n

1 year and 5 months and 7\u00a0days<\/td>\nfailure to examine the possibility of applying other measures of restraint;<\/p>\n

fragility of the reasons employed by the courts;<\/p>\n

failure to assess the applicant\u2019s personal situation reducing the risks of re-offending, colluding or absconding; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice<\/td>\n

<\/td>\n1,000<\/td>\n<\/td>\n<\/tr>\n
4.<\/td>\n24666\/19<\/p>\n

27\/04\/2019<\/td>\n

Oleksandr Oleksiyovych SYENIN<\/strong><\/p>\n

1971<\/td>\n

Pustyntsev Andriy Vitaliyovych<\/p>\n

Dnipro<\/td>\n

06\/08\/2014 to<\/p>\n

10\/04\/2019<\/td>\n

4 years and 8\u00a0months and 5\u00a0days<\/p>\n

 <\/td>\n

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant\u2019s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention<\/td>\nArt. 5 (5) – lack of, or inadequate compensation, for the violation of Article 5 \u00a7\u00a03 of the Convention – Absence of an effective and enforceable right to compensation for alleged violation of Article 5 \u00a7 3, as required by Article 5 \u00a7\u00a05 (see Tymoshenko v.\u00a0Ukraine<\/em>, no.\u00a049872\/11, \u00a7\u00a7 286-287, 30 April 2013; Kotiy v.\u00a0Ukraine<\/em>, no.\u00a028718\/09, \u00a7 55, 5\u00a0March 2015);<\/p>\n

 <\/p>\n

Art. 6 (1) – excessive length of criminal proceedings – the length of the proceedings since 06\/08\/2014 till 24\/06\/2020 before 3\u00a0levels of jurisdiction -5 years, 10\u00a0months, 20\u00a0days.<\/td>\n

3,800<\/td>\n250<\/td>\n<\/tr>\n
5.<\/td>\n29262\/19<\/p>\n

22\/05\/2019<\/td>\n

Volodymyr Viktorovych VORONKOV<\/strong><\/p>\n

1972<\/td>\n

Romanchenko Volodymyr Volodymyrovych<\/p>\n

Kharkiv<\/td>\n

11\/07\/2015<\/p>\n

pending<\/td>\n

More than 6 years and 5\u00a0months and 5\u00a0days<\/p>\n

 <\/td>\n

fragility of the reasons employed by the courts;<\/p>\n

failure to examine the possibility of applying other measures of restraint;<\/p>\n

failure to conduct the proceedings with due diligence during the period of detention<\/td>\n

Art. 6 (1) – excessive length of criminal proceedings \u2013 11\/07\/2015 \u2013 pending; for more than 6 years before 1 level of jurisdiction,<\/p>\n

 <\/p>\n

 <\/td>\n

3,900<\/td>\n250<\/td>\n<\/tr>\n
6.<\/td>\n34780\/19<\/p>\n

21\/06\/2019<\/td>\n

Denys Yuriyovych KUZNETSOV<\/strong><\/p>\n

1980<\/td>\n

Ignatov Oleksandr Anatoliyovych<\/p>\n

Dnipro<\/td>\n

03\/03\/2015 to<\/p>\n

15\/07\/2020<\/td>\n

5 years and 4\u00a0months and 13\u00a0days<\/p>\n

 <\/td>\n

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant\u2019s personal situation reducing the risks of re-offending, colluding or absconding;<\/p>\n

fragility of the reasons employed by the courts;<\/td>\n

Art. 5 (5) – lack of, or inadequate compensation, for the violation of Article 5 \u00a7\u00a03 of the Convention – Absence of an effective and enforceable right to compensation for alleged violation of Article 5 \u00a7 3, as required by Article 5 \u00a7\u00a05 (see Tymoshenko v.\u00a0Ukraine<\/em>, no.\u00a049872\/11, \u00a7\u00a7 286-287, 30 April 2013; Kotiy v.\u00a0Ukraine<\/em>, no.\u00a028718\/09, \u00a7 55, 5\u00a0March 2015);<\/p>\n

Art. 6 (1) – excessive length of criminal proceedings – 04\/11\/2014 – pending, for more than 7 years; 2 levels of jurisdiction<\/td>\n

3,900<\/td>\n<\/td>\n<\/tr>\n
7.<\/td>\n22414\/20<\/p>\n

14\/05\/2020<\/td>\n

Oleksiy Sergiyovych CHORNOYVAN<\/strong><\/p>\n

1984<\/td>\n

Ignatov Oleksandr Anatoliyovych<\/p>\n

Dnipro<\/td>\n

19\/09\/2018 to<\/p>\n

13\/02\/2020<\/td>\n

1 year and 4 months and 26\u00a0days<\/p>\n

 <\/td>\n

fragility of the reasons employed by the courts;<\/p>\n

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice<\/td>\n

Art. 5 (5) – lack of, or inadequate compensation, for the violation of Article\u00a05 \u00a7\u00a03 of the Convention – Absence of an effective and enforceable right to compensation for alleged violation of Article 5 \u00a7 3, as required by Article 5 \u00a7\u00a05 (see Tymoshenko v.\u00a0Ukraine<\/em>, no.\u00a049872\/11, \u00a7\u00a7 286-287, 30 April 2013; Kotiy v.\u00a0Ukraine<\/em>, no.\u00a028718\/09, \u00a7 55, 5\u00a0March 2015)<\/td>\n1,200<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[i]<\/a> Plus any tax that may be chargeable to the applicants.
\n[ii]<\/a> Plus any tax that may be chargeable to the applicants.<\/p>\n