FIFTH SECTION

CASE OF GORBENKO AND KOLBATOV v. UKRAINE

( Applications nos. 28856/19 and 37422/19 )

JUDGMENT

STRASBOURG

25 February 2021

This judgment is final but it may be subject to editorial revision.

In the case of Gorbenko and Kolbatov 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 4 February 2021 ,

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 Ukrainian Government (“the Government”) were given notice of the applications.

THE FACTS

3 . The list of applicant s and the relevant details of the applications are set out in the appended table.

4 . The applicant s complained of the excessive length of their pre-trial detention . They also raised other complaints under the provisions of the Convention.

THE LAW

5 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

6 . The applicant s complained principally that their pre-trial detention had been unreasonably long . They relied on Article 5 § 3 of the Convention, which read s 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, KudÅ‚a 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.

11 . The applicants submitted other complaints 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, and Merit v. Ukraine (no. 66561/01, 30 March 2004) .

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 (see , in particular, Ignatov , cited above, § 57 ) , 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,

(a) that the respondent State is to pay the applicant s , 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 25 February 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Ivana Jelić

             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 ’ s name

Year of birth

Representative ’ s name and location

Period of detention

Length of detention

Specific defects

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]

28856/19

22/05/2019

Viktor Olegovych GORBENKO

1990Igor Andriyovych Mykhaylenko

Kharkiv

11/07/2015 to

26/06/2019

3 years and 11 months and 16 days

F ailure to examine the

possibility of applying

other measures of

restraint;

use of assumptions, in

the absence of any

evidentiary basis, of

the risks of absconding or obstructing justice.

Art. 6 (1) - excessive length of criminal proceedings – 06/07/2015 - pending (more than 5 years and 9 months) for 1 level of jurisdiction,

Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - The domestic courts refused the applicant ’ s appeals against the court decisions extending his detention and requests for alternative measures, having failed to sufficiently address his arguments.

3,100

250

37422/19

03/07/2019

Oleksandr Anatoliyovych KOLBATOV

1994Kyrylo Oleksandrovych Pasenyuk

Kyiv

04/03/2015 to

02/09/2016

01/03/2017

pending

1 year and 5 months and 30 days

More than 3 years and 10 months and 11 days

fragility of the reasons employed by the courts;

failure to examine the possibility of applying other measures of restraint

Art. 6 (1) - excessive length of criminal proceedings –

04/03/2015 - pending – More than 5 years and 10 months before 2 levels of jurisdiction;

Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings

3,900

250[1] Plus any tax that may be chargeable to the applicants.

[2] Plus any tax that may be chargeable to the applicants.