The case mainly concerns the applicant\u2019s complaints under Article\u00a05\u00a0\u00a7\u00a03 of the Convention that his pre-trial detention was unreasonably lengthy<\/p>\n
FIFTH SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Kraynyak v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Having regard to:<\/p>\n the application (no.\u00a068353\/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 7\u00a0September 2017 by a Ukrainian national, Mr\u00a0Sergiy\u00a0Vasylyovych\u00a0Kraynyak (\u201cthe applicant\u201d), who was born in 1994, lives in Subich and was represented by Mr\u00a0O.\u00a0V.\u00a0Zarutskyy, a lawyer practising in Kyiv;<\/p>\n the decision to give notice of the complaints under Article 5\u00a0\u00a7\u00a7\u00a01, 3, 4 and 5 of the Convention to the Ukrainian Government (\u201cthe Government\u201d), represented by their then Agent, Mr\u00a0I.\u00a0Lishchyna, and to declare inadmissible the remainder of the application;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 26 January 2023,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT MATTER OF THE CASE<\/strong><\/p>\n 1. The case mainly concerns the applicant\u2019s complaints under Article\u00a05\u00a0\u00a7\u00a03 of the Convention that his pre-trial detention was unreasonably lengthy, under Article 5 \u00a7 4 that the judge who extended his detention on 23\u00a0March, 24 April and 19 June 2017 was not impartial, and under Article\u00a05\u00a0\u00a7\u00a05 that he had no effective right to compensation for those alleged violations.<\/p>\n I. The applicant\u2019s detention and trial<\/strong><\/p>\n 2. On 31 August 2015 the Parliament of Ukraine debated draft legislation providing for the allocation of greater powers to the local authorities of some areas of the Donetsk and Luhansk regions, as part of implementation of the so-called Minsk Agreements (see Khlebik v.\u00a0Ukraine, no.\u00a02945\/16, \u00a7\u00a012, 25\u00a0July 2017). A crowd of opponents to the legislation gathered in front of Parliament and attacked the National Guard troops guarding the building. A live hand grenade was thrown, killing four servicemen and injuring more than a hundred people.<\/p>\n 3. On the same day the applicant was arrested on suspicion of involvement in the attack. He was initially charged with offences (notably injuring a law\u2011enforcement officer) not covered by the Bail Exclusion Clause.[1]<\/p>\n 4. On 16 September 2015 the charges were changed to terrorism, an offence covered by the Clause. According to the charges, the applicant, twenty-six named individuals and a number of unidentified individuals had attacked law-enforcement officers with wooden and metal sticks. At the same time, G. (a co-defendant), acting with the applicant as part of a premeditated plan, had brought live hand grenades to the square in front of Parliament. The applicant\u2019s role had been to cover up G.\u2019s actions by lighting and holding a smoke grenade while G. threw a live grenade at the troops.<\/p>\n 5. On 2 September 2015 a Kyiv Pecherskyi District Court ordered the applicant\u2019s detention. It found that there was a reasonable suspicion against him. It took into account the gravity of the offence he was suspected of and the circumstances under which it had been committed. It considered that there was a risk that he might influence witnesses, abscond and continue criminal activity, and that a non-custodial preventive measure was insufficient to guard against those risks. The court, given the extreme dangerousness of the violent acts the applicant was suspected of, considered it inappropriate to grant bail.<\/p>\n 6. On 10 August 2016 an extensive investigation (including more than seventy expert examinations) was completed and the case against the applicant and G. was eventually sent to the Kyiv Shevchenkivskyi District Court for a trial by jury.<\/p>\n 7. The courts extended the applicant\u2019s and G.\u2019s detention approximately every two months. They stated that although the defendants had strong social connections, it was likely that, given the severity of the punishment they were facing, they could abscond. Moreover, the court noted that, in view of their military experience in the east of Ukraine, the defendants had acquired particular skills making it possible that they would interfere with the investigation, notably by influencing victims and other witnesses. The acts of which they were suspected had caused mass casualties, which meant that there was a strong public interest in ensuring an orderly investigation.<\/p>\n The applicant\u2019s right to liberty had to be balanced against other rights and interests of society and, therefore, his detention was justified. Also, a central element of the charges was that his actions had been motivated by opposition to the Minsk Agreements. That remained a controversial issue, which increased the likelihood that he might again engage in the type of conduct of which he was accused.<\/p>\n Preventive measures other than detention would be insufficient to guard against those risks.<\/p>\n 8. On 22 May 2020 the applicant was released and placed under twenty\u2011four-hour house arrest. That measure expired on 22\u00a0July 2020.<\/p>\n 9. At the time of the parties\u2019 most recent communication to the Court, 18\u00a0January 2022, the case was pending before the trial court.<\/p>\n II. Challenge concerning Judge B.<\/strong><\/p>\n 10. On 25 January 2017 the applicant challenged the presiding judge in the case, Judge B. He submitted that, according to the special investigation commission established under the Restoration of Trust in the Judiciary Act, in December 2013 the judge had made politically motivated decisions against Euromaidan protesters (see Shmorgunov and Others v.\u00a0Ukraine, nos.\u00a015367\/14 and 13 others, \u00a7\u00a7\u00a0220-29, 21\u00a0January 2021). The applicant argued that, since he was accused of a crime which had been motivated by his political views, he had doubts about the judge\u2019s impartiality.<\/p>\n 11. On 23 March, 24 April and 19 June 2017 Judge\u00a0B. extended the applicant\u2019s detention.<\/p>\n 12. On 23 March and 24 April 2017 the defendants\u2019 lawyers objected that Judge B. could not examine the matter of pre-trial detention since the challenge against him had not yet been examined.<\/p>\n 13. On 2 August 2017 Judge B. himself examined the applicant\u2019s challenge and allowed it. He noted that the special investigation commission had indeed recommended to the High Council of Justice that he be dismissed for breach of oath, but that the Council had not followed that recommendation. While the facts cited by the applicant were not incontrovertible proof that he lacked impartiality, the judge nevertheless considered that they were such as to create an objective doubt as to his impartiality in the eyes of the parties in this kind of proceedings. In such circumstances, the need to guarantee the defendants\u2019 rights under Article\u00a06 of the Convention was a factor which counted in favour of allowing the challenge.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n I. ALLEGED VIOLATIONS OF ARTICLE 5 \u00a7\u00a7 3 TO 5 OF THE CONVENTION<\/strong><\/p>\n 14. The Government contested the applicant\u2019s complaints set out in paragraph 1 above.<\/p>\n 15. The Court notes that the complaints under Article 5 \u00a7\u00a7\u00a03 to 5 are not manifestly ill-founded within the meaning of Article 35 \u00a7\u00a03\u00a0(a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n A. Alleged violation of Article 5 \u00a7 3<\/strong><\/p>\n 16. The relevant period lasted four years and more than ten months (from 31\u00a0August 2015 to 22 July 2020 \u2013 see paragraphs 3 and 8 above and Korban\u00a0v.\u00a0Ukraine, no.\u00a026744\/16, \u00a7 139, 4 July 2019). Such a length of detention is already a matter of grave concern and requires the domestic authorities to put forward very weighty reasons to justify it (see, for example, Vele\u010dka and Others v. Lithuania, nos. 56998\/16 and 3 others, \u00a7\u00a098 and 99, 26\u00a0March 2019, with further references).<\/p>\n 17. The relevant principles of the Court\u2019s case-law are summarised in Grubnyk v.\u00a0Ukraine (no.\u00a058444\/15, \u00a7\u00a7\u00a0110-15, 17\u00a0September 2020).<\/p>\n 18. In that judgment the Court held that, despite references to the Bail Exclusion Clause, the domestic courts had given relevant and sufficient reasons for Mr\u00a0Grubnyk\u2019s detention. The Court considers that similar considerations apply in the present case.<\/p>\n 19. Indeed, when the applicant was initially placed in pre-trial detention, the Bail Exclusion Clause was inapplicable to him (see paragraphs\u00a03 to 5 above). Nevertheless, the domestic court found, referring to the specific circumstances of the case, that the relevant risks justified detention (see paragraph 5 above). In a number of decisions extending detention the courts did invoke the Clause as an additional argument.[2] However, for the courts the invocation of that Clause was not sufficient to extend the applicant\u2019s detention. On the contrary, the courts found that there were specific circumstances which justified it (see paragraph 7 above).<\/p>\n 20. Accordingly, the Court considers that the domestic courts did not use \u201cgeneral and abstract\u201d arguments for the applicant\u2019s detention and that their reasons were relevant and sufficient.<\/p>\n 21. It remains to be ascertained whether the authorities displayed \u201cspecial diligence\u201d in the conduct of the proceedings (see Buzadji\u00a0v. the Republic of Moldova [GC], no.\u00a023755\/07, \u00a7\u00a087, 5\u00a0July 2016).<\/p>\n 22. The Court recognises that the applicant\u2019s case was complex, concerning an incident with more than a hundred victims.<\/p>\n 23. At the same time, the applicant alleged that there had been considerable delays in his case after the pre-trial investigation had been completed on 10 August 2016 (see paragraph 6 above). The Government did not contest the applicant\u2019s allegation that after that date the trial did not begin until at least 15 August 2017, that is, for more than a year. No good reason has been given for that delay. Afterwards, the applicant remained deprived of his liberty for almost three more years.<\/p>\n 24. The authorities did not show that there existed exceptional circumstances justifying the applicant\u2019s detention for such a substantial period, such as, for example, the need to collect evidence abroad or to request international legal assistance (see Lisovskij v.\u00a0Lithuania, no.\u00a036249\/14, \u00a7\u00a080, 2\u00a0May 2017, with further references).<\/p>\n 25. The Court concludes, therefore, that the authorities failed to display special diligence in the period after completion of the pre-trial investigation. This consideration is sufficient for the Court to conclude that there has been a violation of Article 5 \u00a7 3 of the Convention.<\/p>\n B. Alleged violation of Article 5 \u00a7 4<\/strong><\/p>\n 26. The Court has held that the term \u201ccourt\u201d referred to in Article\u00a05 \u00a7\u00a04 must be construed as a body which enjoys the same qualities of independence and impartiality as are required of the \u201ctribunal\u201d mentioned in Article\u00a06 (see Ali Osman \u00d6zmen v.\u00a0Turkey, no.\u00a042969\/04, \u00a7\u00a087, 5\u00a0July 2016). It must be assessed under the same criteria of impartiality (see D.N. v.\u00a0Switzerland, no.\u00a027154\/95, \u00a7\u00a7 42-46, 29\u00a0March 2001).<\/p>\n 27. The requirement of impartiality under Article 6 also has a procedural dimension. Where the applicant raises doubts as to the courts\u2019 impartiality which are not manifestly devoid of merit, the absence of a timely examination of such a challenge may raise an issue of objective impartiality (see Remli\u00a0v.\u00a0France, 23 April 1996, \u00a7 48, Reports of Judgments and Decisions 1996-II; Gazeta Ukraina-Tsentr v. Ukraine, no. 16695\/04, \u00a7\u00a7\u00a034 and 35, 15\u00a0July 2010; and Cosmos Maritime Trading and Shipping Agency v.\u00a0Ukraine, no.\u00a053427\/09, \u00a7\u00a7 78-82, 27 June 2019).<\/p>\n 28. In the present case Judge B. himself eventually allowed the applicant\u2019s challenge, holding that the circumstances could create an appearance for the parties that he lacked impartiality. It follows that, while the judge\u2019s subjective impartiality is not in doubt, the Court cannot hold that the applicant\u2019s misgivings concerning that judge\u2019s impartiality were devoid of any basis.<\/p>\n 29. The Court considers that the applicant\u2019s concerns should have been addressed before the judge decided to extend his detention on 23\u00a0March, 24\u00a0April and 19 June 2017. However, that was not done.<\/p>\n 30. There has, accordingly, been a violation of Article 5 \u00a7\u00a04 of the Convention.<\/p>\n C. Alleged violation of Article 5 \u00a7 5<\/strong><\/p>\n 31. Having examined all the material before it, the Court concludes that the applicant\u2019s complaint discloses a violation of Articles 5 \u00a7\u00a05 of the Convention in the light of the findings in Korban (cited above, \u00a7\u00a7\u00a0201 and 202, with further references).<\/p>\n II. REMAINING COMPLAINT<\/strong><\/p>\n 32. The applicant also complained that his detention from 25\u00a0October to 13\u00a0December 2016 had not been lawful for the purposes of Article 5 \u00a7\u00a01 of the Convention. The Court has examined this part of the application and considers that it was lodged outside of the six-month time-limit and must therefore be rejected as inadmissible pursuant to Article 35 \u00a7\u00a7\u00a01 and 4 of the Convention.<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 33. The applicant claimed 20,000 euros (EUR) in respect of non\u2011pecuniary damage. He also claimed EUR 1,008 for the costs and expenses incurred before the Court, to be paid directly to his representative.<\/p>\n 34. The Government contested those claims, considering them unfounded, unsubstantiated and exaggerated.<\/p>\n 35. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.<\/p>\n 36. Having regard to the documents in its possession, the Court considers it reasonable to award the sum of EUR 8, plus any tax that may be chargeable to the applicant, for the proceedings before the Court, to be paid directly to the applicant\u2019s representative, Mr Zarutskyy.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the complaints under Article 5 \u00a7\u00a7 3, 4 and 5 of the Convention admissible and the remainder of the application inadmissible;<\/p>\n 2. Holds that there has been a violation of Article 5\u00a0\u00a7 3 of the Convention;<\/p>\n 3. Holds that there has been a violation of Article 5\u00a0\u00a7 4 of the Convention;<\/p>\n 4. Holds that there has been a violation of Article 5\u00a0\u00a7 5 of the Convention;<\/p>\n 5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;<\/p>\n 6. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, EUR\u00a08 (eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be transferred directly into the account of the applicant\u2019s representative, Mr Zarutskyy;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 7. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 16 February 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 M\u0101rti\u0146\u0161 Mits ___________<\/p>\n [1] The Bail Exclusion Clause was a provision of the Code of Criminal Procedure that excluded the granting of bail and other non-custodial preventive measures to those accused of terrorism and certain national security offences (see Grubnyk v. Ukraine, no. 58444\/15, \u00a7\u00a7\u00a040, 50, 53\u201156, 116-30, 17 September 2020). It was declared unconstitutional on 25 June 2019.<\/p>\n [2] In the detention orders of October and December 2015, February and July 2016 and January to June 2017 the courts, at the end of their reasoning, quoted the Bail Exclusion Clause verbatim, without providing any comments and typically introducing the quote by \u201calso\u201d (\u043a\u0440\u0456\u043c \u0442\u043e\u0433\u043e). There was no reference to the Clause in other orders, for example those of August, October and December 2016, August 2017 and March 2018.<\/p>\n","protected":false},"excerpt":{"rendered":" The case mainly concerns the applicant\u2019s complaints under Article\u00a05\u00a0\u00a7\u00a03 of the Convention that his pre-trial detention was unreasonably lengthy FIFTH SECTION CASE OF KRAYNYAK v. UKRAINE (Application no. 68353\/17) JUDGMENT STRASBOURG 16 February 2023 This judgment is final but it…<\/p>\n
\nCASE OF KRAYNYAK v. UKRAINE<\/strong>
\n(Application no. 68353\/17)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n16 February 2023<\/p>\n
\nM\u0101rti\u0146\u0161 Mits, President,
\nMar\u00eda El\u00f3segui,
\nKate\u0159ina \u0160im\u00e1\u010dkov\u00e1, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n