CASE OF ZHUKOV AND OTHERS v. UKRAINE

 
 
 
FIFTH SECTION
 
 
 
 
CASE OF ZHUKOV AND OTHERS v. UKRAINE
(Applications nos. 45326/12 and 2 others -
see appended list)
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
27 June 2019
 
 
 
 
 
 
This judgment is final but it may be subject to editorial revision.
 

In the case of Zhukov and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Yonko Grozev, President,
Ganna Yudkivska,
André Potocki, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 6 June 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 their pre-trial detention. The applicants in applications nos. 42074/13 and 51782/18 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 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.”
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.  The applicants in applications nos. 42074/13 and 51782/18 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.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
12.  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.”
13.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Ignatov v. Ukraine, no. 40583/15, 15 December 2016), the Court considers it reasonable to award the sums indicated in the appended table.
14.  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 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 in applications nos. 42074/13 and 51782/18 (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 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 27 June 2019, 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]   
45326/12
10/06/2012
Volodymyr Ivanovych Zhukov
24/05/1959
Dmytro Mykhaylovych Gavyuk
Kamyanets- Podilskyy
12/09/2009 to 14/06/2011
 
05/07/2012 to 17/06/2013
1 year, 9 months and 3 days
 
11 months and 13 days
 
1,700   
42074/13
20/06/2013
Davyd Georgiyovych Kamushadze
12/02/1972
Gidayat Zakir ogly Aliyev
Kyiv
21/01/2013 to 29/09/2014
1 year, 8 months and 9 days
 
Art. 6 (1) - excessive length of criminal proceedings: 28/03/2012 to 18/06/2015
1 level of jurisdiction;
 
Art. 5 (1) (c) - unlawful pre-trial detention:
Between 21/03/2013 and 27/05/2013 the applicant was held in detention on the basis of decisions which did not state any reasons. Moreover, the decision that was the basis for his detention between 21-28/03/2013 did not set any time-limit.
5,900   
51782/18
19/10/2018
Bogdan Yuriyovych Nikitenko
08/02/1969
 
 
22/02/2012 to 10/12/2012
 
19/09/2013 to 12/07/2018
9 months and 19 days
 
4 years, 9 months and 24 days
 
Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - The court failed to properly examine the applicant’s petition for release of 01/06/2018,
 
Art. 6 (1) - excessive length of criminal proceedings - 22/02/2012 and still pending
2 levels of jurisdiction.
4,500
 
 
[1].  Plus any tax that may be chargeable to the applicants.

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