FIFTH SECTION
CASE OF VERKHOGLYAD AND OTHERS v. UKRAINE
(Applications nos. 66356/10 and 7 others -
see appended list)
JUDGMENT
STRASBOURG
8 November 2018
This judgment is final but it may be subject to editorial revision.
In the case of Verkhoglyad 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 11 October 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. THE LOCUS STANDI OF MS OLENA VIKTORIVNA MAYDANUYK
6. As concerns the complaints raised by the applicant in application no. 24619/16, the Court notes that the applicant died on 12 August 2017, while the case was pending before the Court. The applicant’s daughter, Ms Olena Viktorivna Maydanyuk, requested to pursue the application on her father’s behalf. As the request is in line with its case-law, the Court sees no reason to refuse it (see, among other authorities, Fartushin v. Russia, no. 38887/09, §§ 21-35, 8 October 2015; Petr Korolev v. Russia, no. 38112/04, §§ 43-45, 21 October 2010; and Sergey Denisov and Others v. Russia, nos. 1985/05 and 4 others, §§ 73-75, 19 April 2016). However, reference will still be made to the applicant throughout the present text.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
7. The applicants complained principally that their pre-trial detention had been unreasonably long. They 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, 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.
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 applicants’ pre-trial detention was excessive.
11. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.
IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
12. 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).
V. 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, the Court considers it reasonable to award the sums indicated in the appended table.
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,
1. Decides to join the applications;
2. Decides that Ms Maydanyuk, the daughter of the applicant in application
no. 24619/16, has locus standi in the proceedings;
3. Declares the applications admissible;
4. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;
5. 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);
6. 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 in application no. 33975/13, 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 8 November 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’s name
Date of birth
Representative’s 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]
66356/10
30/10/2010
Sergiy Mykolayovych Verkhoglyad
22/07/1978
16/02/2005 to 10/04/2007
18/12/2008 to 15/10/2010
10/03/2011 to 03/10/2011
15/03/2012 to 20/12/2012
2 years, 1 month and 26 days
1 year, 9 months and 28 days
6 months and 24 days
9 months and 6 days
Art. 6 (1) - excessive length of criminal proceedings - Criminal proceedings lasted from 16/02/2005 until 24/10/2013.
4,200
72040/11
14/11/2011
Aleksandr Aleksandrovich Pavlenko
01/01/1985
Roman Yuryevich Martynovskiy
Kyiv
12/03/2009 to 27/01/2012
22/01/2013 to 01/04/2013
30/08/2013 to 28/10/2013
2 years, 10 months and 16 days
2 months and 11 days
1 month and 29 days
Art. 5 (1) (c) - unlawful pre-trial detention: detention incommunicado from 23:00 12/03/2009 until 19:00 13/03/2009; the applicant’s administrative arrest was transformed into a criminal one (see Doronin v. Ukraine, no. 16505/02, § 56, 19 February 2009); on 03/07/2009 the Leninskyy Local Court of Sevastopol extended the applicant’s detention on remand without indicating the term of detention.
Art. 6 (1) - excessive length of criminal proceedings: from 07/03/2009 to 04/03/2014, i.e. 5 years for 2 levels of jurisdiction.
Art. 5 (4) - excessive length of judicial review of detention: on 12/07/2011 the applicant lodged a request for release which was considered only on 12/09/2011.
5,900
33975/13
23/04/2013
Andreas Mikulionis-Roncalez
01/01/1968
11/10/2009 to 29/11/2010
07/02/2012 to 30/09/2013
1 year, 1 month and 19 days
1 year, 7 months and 24 days
Art. 5 (1) (c) - unlawful pre-trial detention: on 28/01/2013 the trial court rejected the applicant’s petition for release due to “lack of reasons for release”.
Art. 5 (4) - excessive length of judicial review of detention: request was lodged on 06/12/2012, refused on 28/01/2013
5,900
42431/13
04/06/2013
Nikolay Nikolayevich Sarzhevskiy
01/07/1970
19/05/2010 to 15/01/2014
3 years, 7 months and 28 days
2,300
47799/13
16/07/2013
Akbar Zhumabayevich Razumetov
22/04/1986
25/10/2007 to 23/11/2009
18/02/2010 to 19/10/2011
10/01/2013 to 25/06/2013
2 years and 30 days
1 year, 8 months and 2 days
5 months and 16 days
Art. 5 (4) - excessive length of judicial review of detention: the appellate court in its judgment of 10/01/2013, while quashing the sentence and referring the case for a new consideration, did not consider the applicant’s request for release or decide on applying any preventive measure at all.
Art. 6 (1) - excessive length of criminal proceedings: from 25/10/2007 to 16/10/2013, i.e. almost 6 years for 2 levels of jurisdiction
5,900
22533/16
04/04/2016
Igor Volodymyrovych Masko
23/09/1974
Oleksandr Viktorovych Tymchuk
Cherkasy
10/11/2007 to 04/06/2010
07/12/2010 to 22/08/2013
18/02/2015 to 29/11/2017
2 years, 6 months and 26 days
2 years, 8 months and 16 days
2 years, 9 months and 12 days
Art. 5 (1) (c) - unlawful pre-trial detention: lack of motivation in the court decisions on prolongation of pre-trial detention;
no end date or term of detention was indicated in the court’s ruling of 09/03/2017.
6,300
24619/16
21/04/2016
Viktor Andriyovych Kryvets
07/11/1954
The applicant died on 12/08/2017. His daughter, Olena Viktorivna Maydanyuk, has the quality of heir.
Mykhaylo Viktorovych Khrulenko
Kyiv
26/08/2011 to 28/07/2015
23/02/2016 to 10/07/2017
3 years, 11 months and 3 days
1 year, 4 months and 18 days
Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: the periods for detention from 20/10/2011 to 20/01/2012; from 19/03/2012 to 13/04/2012; from 13/04/2012 to 11/07/2012; from 19/09/2012 to 06/11/2012 were not covered by any court decision.
In the decisions of 05/12/2011, 13/04/2012, 06/11/2012, 10/01/2013 and 21/02/2013 the courts did not provide any reasons for the applicant’s detention (except suspicion of the applicant committing serious crimes).
Art. 5 (4) - excessive length of judicial review of detention: the court rejected the applicant’s petitions for release of 25/04/2014, 14/05/2015 and 06/06/2016 referring to a standardised reasoning without taking into consideration the circumstances of the applicant’s particular case indicated in the above petitions.
Art. 6 (1) - excessive length of criminal proceedings: from 26/08/2011 to 12/08/2017, i.e. almost 6 years for 2 levels of jurisdiction.
5,900
72379/17
19/09/2017
Oleksandr Pavlovych Dovgan
04/01/1983
Oleg Volodymyrovych Mytsyk
Lviv
09/10/2015
pending
More than 2 years, 10 months and 1 day
1,900
[1]. Plus any tax that may be chargeable to the applicants.
Full & Egal Universal Law Academy