CASE OF KINASH AND DZYUBENKO v. UKRAINE

 
 
 
 
 
FIFTH SECTION
 
 
 
 
 
 
CASE OF KINASH AND DZYUBENKO v. UKRAINE
 
(Applications nos. 31090/18 and 33574/18)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
9 May 2019
 
 
 
This judgment is final but it may be subject to editorial revision.

 
 
In the case of Kinash and Dzyubenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 4 April 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.  Notice of the applications was given 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 criminal proceedings and of the lack of any effective remedy in domestic law. The applicant in application no. 31090/18 also raised a complaint under Article 2 of Protocol No. 4 to 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  6 § 1 AND ARTICLE 13 OF THE CONVENTION
6.  The applicants complained principally 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.”
7.  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).
8.  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.
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 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.
10.  The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.
11.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.
III.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
12.  The applicant in application no. 31090/18 further submitted a complaint under Article 2 of Protocol No. 4 to the Convention relating to the excessive length of her obligation not to abscond (see appended table). This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Nikiforenko v. Ukraine (no. 14613/03, § 59, 18 February 2010) and Ivanov v. Ukraine (no. 15007/02, 7 December 2006).
IV.  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.  The Court considers that the applicants must have sustained non pecuniary damage. Ruling on an equitable basis, it awards them 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.  Declares the applications admissible;
 
3.  Holds that these applications disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of criminal proceedings;
 
4.  Holds that in application no. 31090/18 there has been a violation of Article 2 of Protocol No. 4 to the Convention as regards the excessive length of the obligation not to abscond;
 
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 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 9 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtSíofra O’Leary
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
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]   
31090/18
21/06/2018
Oksana Zinoviyivna Kinash
19/09/1975
Oleg Volodymyrovych Mytsyk
Lviv
05/05/2009
 
pending
 
More than 9 years, 10 months and 9 days
2 levels of jurisdiction
 
Prot. 4 Art. 2 (1) - excessive length of obligation not to abscond:
The obligation not to leave her place of residence was imposed on the applicant on 5 May 2009 within the framework of the criminal proceedings which are at present pending before the first instance (following remittal).
3,900   
33574/18
28/06/2018
Sergiy Petrovych Dzyubenko
18/06/1975
Igor Rostyslavovych Kuvshyn
Zhytomyr
15/10/2012
 
pending
 
More than 6 years, 4 months
and 27 days
2 levels of jurisdiction
 
1,500
 
 
[1].  Plus any tax that may be chargeable to the applicants.

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