FIFTH SECTION
CASE OF KIRTOK v. UKRAINE
(Applications nos. 26193/20 and 9489/21)
JUDGMENT
STRASBOURG
13 January 2022
This judgment is final but it may be subject to editorial revision.
In the case of Kirtok v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lətif Hüseynov, President,
Lado Chanturia,
Arnfinn Bårdsen, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 9 December 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 applicant was represented by Mr A. Fedosin, a lawyer practising in Kyiv.
3. The Ukrainian Government (“the Government”) were given notice of the applications.
THE FACTS
4. The applicant’s details and information relevant to the applications are set out in the appended table.
5. The applicant complained of the excessive length of his pre-trial detention. He also raised other complaints under the provisions of the Convention.
THE LAW
JOINDER OF THE APPLICATIONS6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION7. The applicant complained principally that his pre-trial detention had been unreasonably long. He 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.”
8. 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).
9. In the leading cases of Kharchenko v. Ukraine (no. 40107/02,
§§ 77-81, 10 February 2011) and Ignatov v. Ukraine (no. 40583/15,
§§ 38-42, 15 December 2016), the Court already found a violation in respect of issues similar to those in the present case.
10. 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 applicant’s pre-trial detention was excessive.
11. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.
OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW12. 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 Kharchenko, cited above, §§ 86-87, and Nechay v. Ukraine, no. 15360/10, §§ 67-72, 1 July 2021.
APPLICATION OF ARTICLE 41 OF THE CONVENTION13. 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.”
14. 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.
15. 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the applications admissible;Holds that there has been a violation of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;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);Holds(a) that the respondent State is to pay the applicant, 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 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Lətif Hüseynov
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
Application no.
Date of introduction
Applicant’s name
Year of birth
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
(in euros)[2]
26193/20
12/06/2020
and
9489/21
26/01/2021
Borys Oleksandrovych KIRTOK
1988
26/09/2013
to
28/09/2020
7 years and 3 days
As the case progressed: use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
fragility of the reasons employed by the courts, as the case progressed; failure to conduct the proceedings with due diligence
Art. 5 (4) - excessive length of judicial review of detention - Appeals of 23/05/2020, 06/07/2020 and 14/08/2020 were examined by the Kyiv Court of Appeal on 16/09/2020, 09/03/2021 and 28/09/2020 respectively,
Art. 6 (1) - excessive length of criminal proceedings
from 26/09/2013 - pending,
more than 8 years, 2 months before 1 level of jurisdiction
Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings
3,900
250
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.