NAKONECHNYY AND OTHERS v. UKRAINE - 34900/08 (Judgment : Violation of Right to liberty and security (Length of pre-trial detention)) [2018] ECHR 30 (11 January 2018)

In the case of Nakonechnyy and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          André Potocki, President,
          Síofra O’Leary,
          Mārtiņš Mits, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 7 December 2017,

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. 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 read 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. In applications nos. 38999/09, 17756/11, 4925/12, 31425/12 and 72474/12, the applicants submitted other complaints which also raised issues under the Convention, in accordance with 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. REMAINING COMPLAINTS

12. The applicants in applications nos. 34900/08, 47003/08 and 6407/12, also raised other complaints under various Articles of the Convention.

13. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. 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.”

15. 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. It however makes no award in respect of the applicant, in application no. 63545/11, who failed to respond to the Court’s invitation to submit his just satisfaction claims in accordance with Rule 60 of the Rules of Court.

16. 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 complaints concerning the excessive length of pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of applications nos. 34900/08, 47003/08 and 6407/12 inadmissible;

3. Holds that these complaints 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 (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.

6. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 11 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt André Potocki

Acting Deputy Registrar President

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 name Date of birth	Representative 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]
1.	34900/08 04/07/2008	Aleksandr Vitalyevich Nakonechnyy 23/03/1986		20/07/2004 to 08/08/2008	4 years and 20 days		2,500
2.	47003/08 06/09/2008	Konstantin Vasilyevich Yemets 31/10/1974		17/01/2006 to 12/10/2006 06/07/2007 to 27/03/2008 22/08/2008 to 21/08/2009	8 months and 26 days 8 months and 22 days 1 year		1,600
3.	38999/09 08/07/2009	Yuriy Andreyevich Miroshnichenko 20/08/1969	Vladimir Vasilyevich Suntsov Kharkiv	09/04/2009 to 19/11/2012	3 years, 7 months and 11 days	Art. 6 (1) - excessive length of criminal proceedings - the proceedings lasted between 2009 and 2012 for 1 level of jurisdiction	3,000
4.	62281/09 10/11/2009	Vasyl Ivanovych Durakov 21/08/1964		03/02/2006 to 18/05/2007 24/07/2007 to 04/04/2008 16/06/2009 to 12/11/2010	1 year, 3 months and 16 days 8 months and 12 days 1 year, 4 months and 28 days		2,700
5.	17756/11 12/03/2011	Yevgeniy Aleksandrovich Rubel 25/06/1989		22/01/2009 to 30/12/2009 07/05/2010 to 29/07/2011 11/05/2012 to 19/06/2012	11 months and 9 days 1 year, 2 months and 23 days 1 month and 9 days	Art. 5 (1) (c) - unlawful pre-trial detention: The domestic courts did not set time-limits for the applicant’s continued detention (see Yeloyev v. Ukraine, no. 17283/02, § 54, 6 November 2008) Art. 6 (1) - excessive length of criminal proceedings: at least 3 years and 6 months at 2 levels of jurisdiction	5,900
6.	63545/11 29/09/2011	Mykola Trokhymovych Yakymchuk 01/09/1957		19/04/2006 to 02/07/2012	6 years, 2 months and 14 days		0
7.	4925/12 14/01/2012	Andrey Yuryevich Reznichenko 20/08/1977		12/04/2010 to 05/12/2012	2 years, 7 months and 24 days	Art. 5 (4) - excessive length of judicial review of detention	2,200
8.	6407/12 14/12/2011	Vyacheslav Aleksandrovich Shtemenko 07/12/1984		11/03/2010 to 02/12/2011 25/12/2012 to 04/06/2013	1 year, 8 months and 22 days 5 months and 11 days		1,400
9.	31425/12 13/12/2012	Yevgeniy Malekovich Antonov 02/09/1984		11/11/2011 to 21/05/2013	1 year, 6 months and 11 days	Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis Art. 5 (4) - excessive length of judicial review of detention: lack of proper review proceedings during the trial stage.	5,900
10.	53655/12 05/08/2012	Dmytro Anatoliyovych Sheyko 02/05/1979		18/06/2010 to 25/09/2012	2 years, 3 months and 8 days		1,400
11.	72474/12 26/10/2012	Yuriy Borysovych Veremchuk 17/04/1984	Zoryana Oleksandrivna Kyrylenko Lviv	02/01/2012 to 20/07/2015	3 years, 6 months and 19 days	Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis Art. 5 (4) - excessive length of judicial review of detention Art. 6 (1) - excessive length of criminal proceedings: from 02/01/2012 at 1 level of jurisdiction	5,900

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You are here: BAILII >> Databases >> European Court of Human Rights >> NAKONECHNYY AND OTHERS v. UKRAINE - 34900/08 (Judgment : Violation of Right to liberty and security (Length of pre-trial detention)) [2018] ECHR 30 (11 January 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/30.html Cite as: CE:ECHR:2018:0111JUD003490008, ECLI:CE:ECHR:2018:0111JUD003490008, [2018] ECHR 30