CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 février 2021

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UKRAINE (Application no. 48021/13)             JUDGMENT         STRASBOURG 11 February 2021   This judgment is final but it may be subject to editorial revision. In the case of Stuzhuk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Ivana Jelić, President,   Ganna Yudkivska,   Arnfinn Bårdsen, judges, and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 21 January 2021, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 July 2013. 2.     The applicant was represented by Ms S.M. Stuzhuk , a lawyer practising in Andrushivka, Zhytomyr Region. 3.     The Ukrainian Government (“the   Government”) were given notice of the application. THE FACTS 4.     The applicant’s details and information relevant to the application are set out in the appended table. 5.     The applicant complained of the excessive length of his pre-trial detention. He also raised other complaints under the provisions of the Convention. THE LAW ALLEGED VIOLATION OF ARTICLE 5   §   3 OF THE CONVENTION 6.     The applicant complained principally that his pre-trial detention had been unreasonably long. He 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 applicant’s pre-trial detention was excessive. 10.     These complaints are therefore admissible and disclose a breach of Article   5   §   3 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11.     The applicant submitted other complaints under Article 5 §§ 1 (c) and 4 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 Kharchenko , cited above, §§ 71, 74, 78-81 and 85-86; Barilo v. Ukraine , no. 9607/06, §§   91 ‑ 98, 16 May 2013; and Gal v. Ukraine , no. 6759/11, § 32, 16 April 2015. REMAINING COMPLAINTS 12.     The applicant further raised complaints under Article 6 § 1 of the Convention as to the excessive length of proceedings in his case and that the court in charge of his case was not a “tribunal established by law”. The Court has examined these complaints 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, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 13.     In view of the above, the Court finds that the above complaints must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 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 (see, in particular, Ignatov, cited above, § 57), the Court considers it reasonable to award the sums indicated in the appended table. 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, Declares the complaints concerning the excessive length of pre-trial detention and the other complaints under the well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the application inadmissible; Holds that there has been a violation of Article   5   §   3 of the Convention concerning the excessive length of pre-trial detention; Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table); Holds (a)   that the respondent State is to pay the applicant, 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 February 2021, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Liv Tigerstedt   Ivana Jelić Acting Deputy Registrar   President   APPENDIX Application raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) Application no. Date of introduction Applicant’s name Year of birth Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non ‑ pecuniary damage per applicant (in euros) [1] Amount awarded for costs and expenses per application (in euros) [2] 48021/13 18/07/2013 Viktor Grygorovych STUZHUK 1963 10/04/2010 to 03/04/2013 2 years and 11 months and 25 days Art. 5 (4) - excessive length of judicial review of detention - during the proceedings the applicant lodged numerous requests for release under obligation not to abscond and on bail, that were rejected without his arguments being properly examined, the request of 07/01/2013 was considered by the court on 31/01/2013.   Art. 5 (1) (c) - unlawful pre-trial detention - 1) from 10/04/2010 to 19/04/2010 when the applicant was arrested. His detention was on 12/04/2010 prolonged by the court by 9 days under Article 165-2 of the Code of Criminal Procedure which provided for such a prolongation if the question of detention on remand could not be decided and needed gathering of further materials (see, Barilo v.   Ukraine , no. 9607/06, §§ 91-98, 16 May 2013, and Gal v. Ukraine , no. 6759/11, § 32, 16 April 2015); 2) from 10/09/2010 to 27/09/2010 - the applicant’s detention ordered pending the investigation had expired on the former date and on an unspecified date his case was transferred to the court which adopted a decision on his further detention only on the latter date (see Kharchenko v. Ukraine , no.   40107/02, § 71, 10 February 2011); 3) from 27/09/2010 until 03/04/2013 when the applicant was detained based on the trial court’s decisions rejecting his requests for release which contained no due reasons for that, no analysis of risks and no time-limits (see Kharchenko , cited above, § 74). 5,850 250   [1] Plus any tax that may be chargeable to the applicant. [2] Plus any tax that may be chargeable to the applicant.