FIFTH SECTION

DECISION

Application no . 29085/06 Dmitriy Leonidovich LYUBARETS against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 29 January 2014 as a Committee composed of:

Angelika Nußberger, President, André Potocki, Aleš Pejchal, judges , and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 3 July 2006 ,

Having regard to the declaration submitted by the respondent Government on 9 November 2012 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Dmitriy Leonidovich Lyubarets , is a Ukrainian national, who was born in 1967 and lives in Kyiv. He was represented before the Court by Mr T.O. Kalmykov , a lawyer practising in Kyiv .

The Ukrainian Government (“the Government”) were represented by their Agent .

The applicant, a former police officer, who was arrested on suspicion of murder in September 2004, complained under Article 5 § 1 (c) of the Convention that he was arrested in breach of domestic law . He also complained under Article 3 of the Convention that the police authorities had ill-treated him in order to force him to give self-incriminating statements and that he had been placed in an ordinary cell in pre-trial detention facility, rather than a cell for former police officers.

He further raised complain ts under Article 5 §§ 3 and 4 of the Convention about the length of his pre-trial detention and lack of opportunity to bring effective proceedings by way of which the lawfulness of his detention would have been decided speedily , and under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

Finally, he complain ed under Article 6 §§ 1, 2 and 3, Articles 7, 13, and 17 of the Convention that criminal proceedings against him had been unfair and, without invoking any Convention provision, that hearings had been scheduled on days designated for bathing in his detention facility and there had been no catering arrangements on the court days.

The application was communicated to the Government .

THE LAW

1. The applicant complained about the length of his pre-trial detention, that he had no effective opportunity to challenge its lawfulness and that the proceedings against him lasted an unreasonably long time. He relied on Article 5 §§ 3 and 4 and Article 6 § 1 of the Convention .

After the failure of attempts to reach a friendly settlement, by a letter of 9 November 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ The Government of Ukraine acknowledge that domestic authorities have violated the applicant ’ s rights guaranteed by Articles 5 §§ 3, 4 and 6 § 1 of the Convention.

I, Nazar Kulchytskyy, the Government Agent before the European Court of Human Rights, declare that the Government of Ukraine are ready to pay Mr Dmytro Leonidovych Lyubarets the just satisfaction in the amount of EUR 5 130 (five thousand one hundred and thirty).

The Government therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration mig ht be accepted by the Court as “ any other reason” justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

The sum of EUR 5 130, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be converted into the national currency of the respondent State at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the above three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

This payment will constitute the final resolution of the case. ”

By a letter of 19 March 2013 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases, including those brought against Ukraine , its practice concerning complaints about the violation of Article 5 §§ 3 and 4 and one ’ s right to a hearing within a reasonable time (see, for example, Kharchenko v. Ukraine , no. 40107/02 , 10 February 2011 ; Vergelskyy v. Ukraine , no. 19312/06, 12 March 2009 ; Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ‑ V ; Majewski v. Poland , no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland , no. 56026/00, 10 May 2007).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

2. As for the other complaints raised under Article s 3, 5 § 1 (c) , 6 §§ 1, 2 and 3, Articles 7, 13, and 17 of the Convention, h aving regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration under Article 5 §§ 3 and 4 and Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Stephen Phillips Angelika Nußberger Deputy Registrar President