FIFTH SECTION
CASE OF SHCHERBAK AND OTHERS v. UKRAINE
(Applications nos. 44689/10 and 3 others -
see appended list)
JUDGMENT
STRASBOURG
19 December 2019
This judgment is final but it may be subject to editorial revision.
In the case of Shcherbak and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 28 November 2019,
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 criminal proceedings and of the lack of any effective remedy in domestic law.
THE LAWJOINDER 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.
THE LOCUS STANDI OF MS Lyudmyla Ivanivna Shcherbak
6. As concerns the complaints raised by the applicant in application no. 44689/10, the Court notes that the applicant died on 23 May 2016, while the case was pending before the Court. The applicant’s mother, Ms Lyudmyla Ivanivna Shcherbak, has requested to pursue the application on her son’s behalf. As the request is in line with its case-law, the Court sees no reason to refuse it (see, among other authorities, Benyaminson v. Ukraine, no. 31585/02, § 83, 26 July 2007; Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 67, 3 December 2015; and Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005). However, reference will still be made to the applicant throughout the present text.ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION
7. The applicants complained that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
8. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
9. In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004) 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 as to 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 proceedings was excessive and failed to meet the “reasonable time” requirement.
11. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.
12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION
13. 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, Bevz v. Ukraine, no. 7307/05, § 52, 18 June 2009), the Court finds 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. 44689/10.
15. 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,Decides to join the applications;Decides that Ms Lyudmyla Ivanivna Shcherbak, the mother of the applicant in application no. 44689/10, has locus standi in the proceedings;Declares the applications admissible;Holds that these applications disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of criminal proceedings;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.Dismisses the remainder of the applicant’s claims for just satisfaction in application no. 44689/10.
Done in English, and notified in writing on 19 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtGabriele Kucsko-Stadlmayer
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention
(excessive length of criminal proceedings and lack of any effective remedy in domestic law)
No.
Application no.
Date of introduction
Applicant’s name
Date of birth
Representative’s name and location
Start of proceedings
End of proceedings
Total length
Levels of jurisdiction
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
44689/10
27/07/2010
Vitaliy Vitaliyovych SHCHERBAK
17/11/1984
Deceased: 23/05/2016
Heir:
Ms Lyudmyla Ivanivna Shcherbak (mother)
19/09/2005
20/06/2014
8 years, 9 months and 2 days
1 level of jurisdiction
3,600
52334/18
26/10/2018
Artem Stepanovych KVYCH
31/01/1987
Oleksandr Anatoliyovych Ignatov
Dnipro
01/08/2013
pending
More than 6 years, 3 months and 4 days
1 level of jurisdiction
1,800
1333/19
03/12/2018
Oleg Anatoliyovych LYESKOV
26/04/1966
Denys Vasylyovych Ponomarenko
Odesa
21/01/2008
13/07/2018
10 years, 5 months and 23 days
1 level of jurisdiction
4,200
10433/19
13/02/2019
Bogdan Petrovych TUROVSKYY
05/07/1985
Iryna Oleksandrivna Polishchuk
Zhytomyr
15/12/2010
pending
More than 8 years, 10 months and 23 days
1 level of jurisdiction
3,600
[1]. Plus any tax that may be chargeable to the applicants.
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