MIKHAYLOV AND OTHERS v. UKRAINE - 80643/12 (Judgment : Violation of Right to liberty and security (Length of pre-trial detention) [2018] ECHR 40 (11 January 2018)

In the case of Mikhaylov 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. REMAINING COMPLAINTS

11. Some 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. 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, 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 (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 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.	80643/12 05/12/2012	Ruslan Aleksandrovich Mikhaylov 07/01/1977	Vladimir Ivanovich Fedorets Zaporizhzhya	04/11/2006 to 16/04/2008 20/10/2008 to 31/03/2010 30/08/2011 to 21/06/2013	1 year, 5 months and 13 days 1 years, 5 months and 12 days 1 year, 9 months and 23 days		2,900
2.	24135/13 22/03/2013	Gennadiy Viktorovich Kuzmenko 17/12/1972		25/02/2011 to 19/03/2012 09/10/2012 to 01/10/2013	1 year and 24 days 11 months and 23 days		1,300
3.	39615/13 10/06/2013	Yuriy Aleksandrovich Lysenko 20/11/1980		15/12/2011 to 13/08/2014	2 years, 7 months and 30 days	Art. 5 (4) - excessive length of judicial review of detention: reiterated reasoning in standard terms in the decisions on continued detention	2,200
4.	47396/13 10/07/2013	Ruslan Viktorovych Levchenko 10/09/1982		18/08/2009 to 24/10/2011 23/02/2012 to 17/03/2014	2 years, 2 months and 7 days 2 years and 23 days	Art. 5 (4) - excessive length of judicial review of detention: lack of judicial review of the continued detention; complaint raised under Art. 13 falls to be examined under Art. 5 (4) Art. 6 (1) - excessive length of criminal proceedings: the criminal proceedings initiated on 20/08/2009 still pending (two instances)	3,400
5.	55766/13 25/08/2013	Aleksandr Grigoryevich Shkolenko 03/08/1987		21/10/2009 to 08/10/2010 10/05/2012 to 07/11/2012 14/03/2013 to 11/07/2013	11 months and 18 days 5 months and 29 days 3 months and 28 days		1,200
6.	61635/13 17/09/2013	Vladimir Vasilyevich Kolos 07/09/1979		09/11/2008 to 15/12/2010 15/03/2012 to 05/06/2014	2 years, 1 month and 7 days 2 years, 2 months and 22 days	Art. 6 (1) - excessive length of criminal proceedings: 5 years and 8 months before two instances. The proceedings are still pending.	3,400
7.	73056/13 13/11/2013	Vitaliy Grigoryevich Krivonos 23/02/1986		10/04/2010 to 22/07/2011 21/12/2012 to 22/07/2014	1 year, 3 months and 13 days 1 year, 7 months and 2 days	Art. 5 (4) - excessive length of judicial review of detention: the court did not consider properly the applicant’s petitions for release submitted between 10/04/2010 and 15/01/2014 - the applicant provided two well-founded petitions.	2,500
8.	73715/13 16/11/2013	Liliya Volodymyrivna Borodina 27/04/1975		30/05/2011 to 12/06/2014	3 years and 14 days		1,900
9.	60061/14 23/08/2014	Vladyslav Mykolayovych Popovych 30/11/1980	Oleksandr Vadymovych Zarutskyy Kyiv	13/04/2010 to 29/05/2012 11/06/2013 to 25/02/2014	2 years, 1 month and 17 days 8 months and 15 days		1,900
10.	73810/14 17/11/2014	Vladimir Ivanovich Zaritskiy 24/02/1969	Elena Aleksandrovna Tupchiy Kyiv	15/12/2011 to 13/08/2014	2 years, 7 months and 30 days	Art. 5 (4) - excessive length of judicial review of detention: the applicant lodged numerous petitions for release which were rejected by the court without proper reasoning.	2,200
11.	24675/16 21/04/2016	Sergiy Sergiyovych Zayevyy 26/10/1992	Dmytro Viktorovych Yagunov Kyiv	04/03/2013 to 30/10/2015	2 years, 7 months and 27 days	Art. 6 (1) - excessive length of criminal proceedings: the proceedings have been pending for 3 years and 4 months at the first-instance.	2,200

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You are here: BAILII >> Databases >> European Court of Human Rights >> MIKHAYLOV AND OTHERS v. UKRAINE - 80643/12 (Judgment : Violation of Right to liberty and security (Length of pre-trial detention) [2018] ECHR 40 (11 January 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/40.html Cite as: ECLI:CE:ECHR:2018:0111JUD008064312, CE:ECHR:2018:0111JUD008064312, [2018] ECHR 40