FIFTH SECTION
CASE OF BONDARENKO AND OTHERS v. UKRAINE
(Applications nos. 27052/09 and 11 others -
see appended list)
JUDGMENT
STRASBOURG
28 June 2018
This judgment is final but it may be subject to editorial revision.
In the case of Bondarenko and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 7 June 2018,
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 applications were communicated to the Ukrainian Government (“the Government”).
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 read 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. 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 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) and Kharchenko v. Ukraine (cited above).
IV. REMAINING COMPLAINTS
12. In applications nos. 78459/12 and 76741/13, the applicants raised other complaints respectively under Articles 6 § 1 and 13 of the Convention, and under Article 5 of the Convention.
13. The Court, having examined all the materials submitted to it and having regard to its case-law on the subject (see, for example, Merit v. Ukraine, no. 66561/01, 30 March 2004), considers that these complaints are inadmissible since the length of the proceedings in application no. 78459/12 was not excessive or unreasonable. In application no. 76741/13, the complaints concerning the absence of grounds for the applicant’s detention and unlawfulness of his detention during the period from 24 to 27 July 2012 were submitted to the Court outside the six-month time-limit.
In view of the above, the Court finds that these complaints are inadmissible and must be rejected in accordance with Article 35 §§ 1, 3 and 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, the Court considers 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 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 applications nos. 78459/12 and 76741/13 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, except for applications nos. 52951/11 and 62419/12, 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 28 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtYonko Grozev
Acting Deputy RegistrarPresident
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 name
Date of birth
Representative name and location
Period of detention
Length of detention
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses
per applicant (in euros)[1]
27052/09
17/04/2009
Borys Mykolayovych Bondarenko
10/12/1962
Oleg Valeriyovych Bordyug
Zaporizhya
23/10/2006 to 20/08/2010
3 years, 9 months and 29 days
Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis:
1) 23/10/2007 – 25/03/2008 - detention without court order;
2) 27/11/2008 - 23/12/2008 - detention without court order;
3) 23/12/2008 - 20/08/2010 - detention without time limits.
5,900
49690/10
14/05/2010
Oleg Valentinovich Galimon
09/04/1968
14/02/2007 to 02/11/2007
04/08/2009 to 25/10/2010
8 months and 20 days
1 year, 2 months and 22 days
1,200
2517/12
30/12/2011
Sergey Sergeyevich Kukhtin
02/06/1978
Sergiy Anatoliyovych Zayets
Irpin
07/11/2010 to 06/12/2011
1 year and 1 month
Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - Court decision of 03/02/2011 did not set any time limits for the applicant’s detention; detained solely on the basis of the fact that a bill of indictment had been submitted to the trial court from 07/01/2011 to 03/02/2011.
5,900
52951/11
11/08/2011
Gleb Eskovich Zelenov
03/01/1981
08/02/2008 to 09/08/2010
15/02/2011 to 05/06/2012
2 years, 6 months and 2 days
1 year, 3 months and 22 days
Art. 6 (1) - excessive length of criminal proceedings:
4 years and 9 months
2 levels of jurisdiction
3,100
40818/12
14/06/2012
Vadim Nikolayevich Tokunov
13/10/1962
22/09/2009 to 22/07/2014
4 years, 10 months and 1 day
Art. 6 (1) - excessive length of criminal proceedings:
4 years and 10 months
1 level of jurisdiction
4,000
62419/12
28/09/2012
Oleg Fedorovich Volokin
03/01/1967
Yelena Anatolyevna Telyatyeva
Moscow -Zelenograd
03/07/2008 to 27/07/2009
04/11/2009 to 28/03/2012
17/09/2012 to 15/11/2013
1 year and 25 days
2 years, 4 months and 25 days
1 year, 1 month and 30 days
Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: lack of reasoning of court orders on the applicant’s detention.
5,900
65226/12
26/09/2012
Tamara Aleksandrovna Nekrasova
22/12/1973
02/03/2012 to 23/09/2015
3 years, 6 months and 22 days
Art. 5 (1) (c) - unlawful pre-trial detention: - no duration of detention was indicated by the courts in their decisions of 27/01/2014, 22/05/2014 and 16/06/2015 by which the applicant’s pre-trial detention was extended;
- lack of reasoning in the courts’ decisions extending the pre-trial detention – mostly “gravity of charges”
5,900
78459/12
19/11/2012
Aleksandr Aleksandrovich Grebeshkov
12/05/1971
21/09/2009 to 16/12/2010
26/04/2011 to 13/03/2012
10/07/2012 to 21/12/2012
11/03/2014 to 19/06/2014
1 year, 2 months and 26 days
10 months and 17 days
5 months and 12 days
3 months and 9 days
Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention: the applicant complains about absence of compensation for the unlawful detention.
2,400
15202/13
04/02/2013
Gennadiy Vasilyevich Chernov
15/12/1962
26/08/2005 to 15/12/2008
20/05/2010 to 10/06/2014
3 years, 3 months and 20 days
4 years and 22 days
Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: period 26/10/2005 – 07/11/2005 was not covered by any court order.
Art. 6 (1) - excessive length of criminal proceedings :
8 years, 9 months and 16 days
2 levels of jurisdiction
5,900
42850/13
25/06/2013
Oleksandr Vasylyovych Kharkiv
17/09/1985
09/08/2010 to 27/09/2012
01/03/2013 to 26/06/2015
2 years, 1 month and 19 days
2 years, 3 months and 26 days
Art. 6 (1) - excessive length of criminal proceedings :
5 years and 2 months
2 levels of jurisdiction
3,600
48549/13
08/07/2013
Aleksandr Sergeyevich Tverdokhleb
06/07/1971
01/03/2011 to 25/06/2013
2 years, 3 months and 25 days
1,400
76741/13
20/11/2013
Andriy Valeriyovych Yolkin
28/05/1988
24/07/2012 - pending
More than 5 years and 9 months
Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: lack of reasoning of the rulings on extension of detention.
Art. 5 (4) - excessive length of judicial review of detention:
- the domestic courts failed to address the applicant’s arguments advanced in his numerous requests for release;
- court hearings regarding extension of the applicant’s detention on 09/12/2014, 04/05/2015 and 30/04/2015 were held in absence of the applicant or his representative.
Art. 6 (1) - excessive length of criminal proceedings :
More than 5 years and 9 months
1 level of jurisdiction
5,900
[1] Plus any tax that may be chargeable to the applicants.
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