FIFTH SECTION

DECISION

Application no . 24605/06 Yuriy Stepanovich CHERNYSHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 28 August 2012 as a Committee composed of:

Mark Villiger , President, Ganna Yudkivska , André Potocki , judges, and Stephen Phillips , Deputy Section Registrar ,

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

Having regard to the unilateral declaration submitted by the respondent Government on 14 March 2012 requesting the Court to strike the application out of its list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yuriy Stepanovich Chernyshenko , is a Ukrainian national, who was born in 1968 and lives in Lyubotyn . The Ukrainian Government (“the Government”) were represented by th eir Agent, initially Ms Valeria Lutkovska , and subsequently Mr Nazar Kulchytskyy .

The circumstances of this case are similar to those examined in the judgment concerning the case Pleshkov v. Ukraine (no. 37789/05 , 10 February 2011), as they concern the same criminal proceedings against both the applicant and Mr Pleshkov (see §§ 6-19 of the cited judgment).

While the proceedings were suspended on 24 October 2007 owing to Mr Pleshkov ’ s absconding, the applicant in the present case did not abscond from justice. The case remains pending before the court of first instance.

THE LAW

The applicant complained, in particular, about the length of his pre-trial detention and the lack of its judicial review, as well as the length of the criminal proceedings in his case. He relied on Article 5 §§ 3 and 4 and Article 6 § 1 of the Convention reading as follows, in so far as relevant:

“ Article 5.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Article 6.

In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

On 8 November 2011 the President of the Fifth Section decided to give notice of the application, insofar as it concerned the above complaints, to the Government of Ukraine.

Following unsuccessful friendly-settlement negotiations between the parties, by letter dated 14 March 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by 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 the applicant ’ s detention from 25 May 2004 to 31 July 2006 constituted violation of his rights set forth in Article 5 § 3 of the Convention to be tried within reasonable time or released pending trial; the applicant was not afforded an adequate review of the lawfulness of his detention in defiance of Article 5 § 4 of the Convention; and domestic authorities have allowed excessive length of criminal proceedings against the applicant in breach of Article 6 § 1 of the Convention.

I, Valeria Lutkovska , the Government Agent before the European Court of Human Rights, declare that the Government of Ukraine are ready to pay Mr Yuriy Stepanovich Chernyshenko the just satisfaction in the amount of EUR 5,000.

The Government therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might 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 5,000, 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 said 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.”

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.

In the light of its findings in the judgment concerning the cited above case of Pleshkov v. Ukraine ( §§ 32-53), h aving regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

The Court is also 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 ).

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;

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

             Stephen Phillips Mark Villiger              Deputy Registrar President